The House’s January 6 committee laid out on Wednesday its most comprehensive view yet for how former President Donald Trump’s conduct up to and during the insurrection may have amounted to a crime.
The arguments came in a court filing where a key player in the “conspiracy” alleged by the committee is seeking to block some of his emails from being disclosed to House investigators.
John Eastman, the conservative lawyer who was advising Trump in his bid to overturn the 2020 election, was a “central figure” in a scheme to convince then-Vice President Mike Pence to stand in the way of Congress’ certification vote, the committee said.
“The evidence developed to date indicates that these actions were all part of a concerted effort to achieve a common goal: to prevent or delay the certification of the 2020 presidential election results,” the committee said.
Here are the key takeaways from the court filings:
The filing appears to be a roadmap to the House’s belief there was a crime
The committee says that there is evidence that Trump and his allies may have “engaged in a criminal conspiracy to defraud the United States.”
The House can’t prosecute, and its investigation isn’t over, but it’s certainly revealing that the committee is willing to go this far. The committee pointed to two criminal statutes that Trump may have violated, based on the “good-faith belief” inferred from the evidence the committee has collected.
The first is a law prohibiting the obstruction of an official proceeding, which has been used by the Justice Department to charge dozens of the rioters who breached the Capitol on January 6.
Secondly, according to the committee, there is as a “good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States.”
The committee says there’s evidence supporting an inference that Trump, Eastman and “several” others entered “into an agreement to defraud the United States by interfering with the election certification process, disseminating false information about election fraud, and pressuring state officials to alter state election results and federal officials to assist in that effort.”
The House wants more communications between Trump and Eastman
House lawmakers are putting forward that evidence to argue that the court should look at the documents Eastman claims are privileged to determine whether they fit under the “crime-fraud exception” — an exemption to the typical protections of attorney-client privilege that would allow the communications in question to be released.
A judge is privately reviewing the emails, and will hold a hearing next week on the arguments. That judge will ultimately have to decide if the House gains more access to what Eastman told Trump around January 6.
The dispute centers on the subpoena issued to Chapman University, where Eastman was employed during the bid to to overturn the election results, for emails he sent on his university email account. Eastman has sued the university to block the emails’ disclosure, but so far his lawsuit has had middling success. Thousands of pages of his emails have already been turned over to the committee. He is still holding back more than 10,000 emails in total, and more than 100 specifically from January 4-7, 2021.
Now, the lawmakers and the lawyer are litigating over emails Eastman has sought to withhold on claims of attorney-client privilege.
The committee made several legal arguments for why Eastman’s privilege claims should not hold up. Among them is a request that the court privately review the disputed documents to determine whether the crime-fraud exception should apply.
The lawmakers argued Wednesday that “evidence and information available to the Committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts, and that Plaintiff’s legal assistance was used in furtherance of those activities.”
Eastman was “central” and working for Trump throughout, according to the committee
The committee pointed to a legal memo Eastman wrote outlining a far-fetched legal theory for how Pence could disregard the procedures for Congress’ certification of the results. The lawmakers also laid out evidence of several other instances where Eastman and Trump attempted to convince Pence or his aides that he could get in the way of Congress’ certification of President Joe Biden’s victory.
But he wasn’t a rogue actor. Earlier in the lawsuit, Eastman’s own defense attorneys made clear the steps he was taking to overturn the election were done on behalf of Trump.
Eastman “was a central figure in the effort to encourage the former Vice President to reject the electors from several states and in the strategy to facilitate different slates of electors,” the committee said in Wednesday’s filing. “He may also have played other important roles in the events under investigation.”
That effort included meetings on January 4 and 5 where Eastman discussed his legal theories about Pence’s role — meetings detailed in deposition excerpts filed in court Wednesday from the interview that Greg Jacob, Pence’s legal adviser, gave House investigators.
Per Jacob’s deposition, Eastman would pivot between arguments that Pence could delay the certification proceedings and that he could flat out reject the electors for Biden.
Jacob recalled Eastman coming into the January 5 meeting saying, “What I’m here to ask you to do is to reject the electors,” according to the deposition transcript.
As Jacob pressed Eastman on his theory, Eastman even conceded his arguments might not even get a single vote of support from the Supreme Court, according to Jacob’s account.
The committee also filed in court an email exchange between Jacob and Eastman after the riot was underway, in which Jacob was still pointing out the flaws in Eastman’s legal arguments.
“And thanks to your bullshit, we are now under siege,” Jacob wrote, prompting Eastman to write Jacob that “the ‘siege’” was because of “YOU and your boss did not do what was necessary to allow this be aired in a public way.”
In another email, Jacob said that Eastman’s advice to Trump “whether intended to or not, functioned as a serpent in the ear of the President of the United States.”
The “apparent objective” of the pressure campaign on Pence, according to the committee, “was to overturn the results of the 2020 presidential election and declare Donald Trump the winner.”
“In this way, the conspiracy aimed to obstruct and interfere with the proper functioning of the United States government,” the committee told the court.
Trump was told there was no voter fraud, witnesses said
The committee put forward new evidence about what Trump was told during his efforts to stave off certification of his defeat.
“The evidence supports an inference that President Trump and members of his campaign knew he had not won enough legitimate state electoral votes to be declared the winner of the 2020 Presidential election during the January 6 Joint Session of Congress, but the President nevertheless sought to use the Vice President to manipulate the results in his favor,” the committee said.
Days after the election, his campaign’s top data adviser told Trump in “blunt terms” that he was headed towards defeat, according to an account Trump campaign adviser Jason Miller gave the committee, which was disclosed in deposition excerpts filed with the court.
Trump was also told repeatedly by top members of his Justice Department, according to excerpts filed from a deposition of former DOJ No. 2 Richard Donoghue, that its investigations had not substantiated the evidence of the mass fraud claims he and his allies were pushing.
Miller himself gave Trump his opinion — in “several” conversations — that “specific to election day fraud and irregularities, there were not enough to overturn the election,” according to his account to the committee.
Trump’s false statements about election fraud, the committee argued, were apparently “informed by Dr. Eastman’s extensive advice that the election was stolen and that Congress or the Vice President could change the outcome of the election on January 6.”
The committee also put forward evidence — via excerpts of a deposition of Keith Kellogg, a Pence national security adviser with the Trump on the 6th — that Trump continued to badger Pence on the phone that morning about Pence’s decision not to disrupt the certification.
Argues that Eastman’s school warned about e-mail privacy
Besides the crime-fraud exception, there are several reasons Eastman’s arguments for withholding his emails should fail, the committee said.
To argue that Eastman failed to establish “existence of a legitimate attorney-client relationship with former President Donald Trump during the period at issue,” the committee pointed to the absence of signatures from either the attorney or client on the engagement letter Eastman provided to the committee.
The committee also noted that Chapman University has a specific policy warning that “Users should not expect privacy in the contents of University-owned computers or e-mail message.”
Eastman’s lawyer said in a statement responding to Wednesday’s filing that Eastman “has a responsibility to protect client confidences, even at great personal risk and expense.”
“The Select Committee has responded to Dr. Eastman’s efforts to discharge this responsibility by accusing him of criminal activity,” the lawyer, Charles Burnham, said. “Because this is a civil matter, Dr. Eastman will not have the benefit of the Constitutional protections normally afforded to those accused by their government of criminal conduct.”
Does the Justice Department look at this now?
The committee’s allegations about potential criminal conduct are in the context of the dispute over Eastman’s emails. But Wednesday’s filings came after the committee has made other hints that it is assessing whether the President or his circle broke any laws in the bid to reverse his electoral defeat.
Committee members have also hinted they are developing a recommendation for why the Justice Department should pursue charges.
The filing reveals publicly — including to federal prosecutors, if they are interested — transcripts of Capitol Hill testimony from those around Trump. What was said in those interviews was still largely secret — and essentially gets key witnesses on the record early about what they remembered, under oath. Hill testimony could always play into a criminal investigation, and some of the witnesses could be called to testify again.
It will ultimately be the department’s call to act on any recommendation from the committee.
There’s no evidence the Department of Justice is interested at this time in pursuing a broader case against top political figures who wanted to overturn the election result, and that type of approach could lead to constitutionally complicated and heavily politicized legal fight. But at this time there is a grand jury looking at Trump’s pressuring of officials to find votes for him, in an investigation being led by Atlanta’s district attorney.
Whatever spins out of this, it’s important still to remember that this filing isn’t the end of the House’s public statements.
In a footnote in Wednesday’s filing, the committee said that the evidence it had submitted did not “represent the entirety of the evidence obtained by the Select Committee with respect to these issues.”
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