No, Trump didn't commit a crime on January 6.
Notwithstanding Democrats' wishes, there's no crime associated with January 6 with which to prosecute former President Trump.
Democrat partisans continue to dream of an upcoming Trump indictment relating to, well, anything, but especially January 6.
With the specter of the upcoming January 6 Select Committee “hearings” and the recent leak of former Trump Chief of Staff Mark Meadows’ texts, there has been quite a buzz about it. Examples abound, but this one is as good as any:
Setting aside the obvious fact that the House has no power to prosecute (or even investigate) crimes, the major hurdle the theory of an imminent Department of Justice indictment has is that Trump committed no election related crime on January 6. It is important to note that what Goldman refers to as a “coup investigation” has never been confirmed by Biden’s DOJ. However, if such an investigation exists, it rests largely on some some of a theory that Trump obstructed a proceeding of Congress, in this particular instance the meeting of the Electoral College on January 6, by attempting to challenge then candidate Biden’s certification as President.
To be sure, the January 6 Selection Committee has various theories upon which it believes that Trump could and should be prosecuted. We know this because in seeking documents protected by the attorney-client privilege from Trump attorney John Eastman, the Committee advanced three theories upon which Trump committed on a crime on January 6 by seeking to challenge the certification of Joseph R. Biden’s supposed victory. They are: 1) that Trump obstructed “Congress’ proceeding to count the electoral votes on January 6” in violation of 18 U.S.C. § 1512(c)(2); 2) that “Trump, Eastman, and others entered into an agreement to defraud the United States by interfering with the election certification process” in violation of 18 U.S.C. § 371; and 3) that “Trump and members of his Campaign engaged in common law fraud in connection with their efforts to overturn the 2020 election results.”
On March 28, 2022, Judge David O. Carter of the United States District Court for the Central District of California ruled that, in his view, Trump “more likely than not” committed crimes under the January 6 Committee’s first two theories (the Court declined to rule on the third). In so concluding, the Court determined that documents that Mr. Eastman produced for Trump as an attorney were not entitled to be protected from production by the attorney-client privilege under the “crime-fraud” exception to the privilege. These two theories likely are the ones most (if not all) pushing for Trump’s prosecution are banking on. They should not be.
Neither theory holds up to scrutiny, thus likely explaining why President Biden’s DOJ has not moved to indict anyone, Trump or otherwise, some fifteen months after the event. A brief analysis of how the judge reached his plainly erroneous conclusion is instructive. Before proceeding, however, it must be noted that vast departures from the Rule of Law in the name of anti-Trump partisanship have become far too commonplace and likely wreaked irreversible havoc on our Republic. This becomes clearer upon review of the two supposed crimes.
The first alleged crime is obstruction of “Congress’ proceeding to count the electoral votes on January 6” in violation of 18 U.S.C. § 1512(c)(2). Section 1512(c)(2) requires three elements be proven for conviction:
(1) the person obstructed, influenced or impeded, or attempted to obstruct, influence or impede (2) an official proceeding of the United States, and (3) did so corruptly.
This statute (and others punishing similar crimes) traditionally, and by traditionally, think prior to the Trump era, have been understood to be some sort of overt action to keep Congress from performing its functions, such as planting a bomb or bribing an official. Were the rule otherwise, simply protesting, which has been performed often and without prosecution in the past arguably would rise to the level of a violation. Indeed, for those not operating in good faith, any action could be interpreted as “influencing” or “impeding” a proceeding. Again, protests plainly “influence” and to a lesser degree “impede” proceedings of Congress on a daily basis, but such actions are far from criminal. Nonetheless, this is the precise approach the judge took.
In deciding that Trump “more likely than not” obstructed Congress on January 6 by proceeding with his plan to challenge certification, the judge simply went through the motions described above as reading the statute as potentially criminalizing any action a citizen takes to challenge an action of Congress. Under the court’s reasoning, pleading “not guilty” to an indict would be an “obstruction” of a criminal proceeding. No court prior had given the statute such as expansive interpretation. Under the judge’s interpretation, any action one takes relating to a proceeding of Congress is subject to prosecution. Plainly this is not the proper interpretation.
Making matters worse, in addition to the ridiculously expansive interpretation of the statute, the court, in reaching the conclusion that Trump had a corrupt intent, purposefully misrepresented Trump’s motivations. The court declared that Trump supposedly “knew” that his claims of election malfeasance had no basis in law or fact. However, the “Eastman Memo” upon which the court based so much of its view that Trump had no basis to challenge the election claims just the opposite—it lays out all the different theories upon which Trump and his allies believed the election had been conducted illegally. The court’s misinterpretation cannot be accidental considering the fact that the court plainly misrepresents the “Eastman Memo” as Trump intending to “step outside the bounds of normal practice: ‘we’re no longer playing by Queensbury Rules.’” The entire quote from the Eastman Memo the court cited to is:
BOLD Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules, therefore.”
In context, it is plan that Trump’s team actually believed the election had been stolen and “BOLD,” not illegal, measures were necessary. This is not to suggest that this belief was correct, but citing that quote as suggesting the Trump team knew their claims of election malfeasance were baseless is disingenuous; the memo spends six pages claiming the opposite. While on the order of 70% of Americans do not read passed the headline of an article, this judge had to know his opinion would be closely scrutinized. In light of this, this slight of hand is all the more troubling (and revealing). To wit, it would appear those seeking to have Trump criminally prosecuted are not interested in sustaining their arguments with facts.
The second supposed crime is no more viable than the first. The crime of “defrauding the United States by interfering with the election certification process” in violation of 18 U.S.C. § 371 requires that:
(1) at least two people entered into an agreement to obstruct a lawful function of the government (2) by deceitful or dishonest means, and (3) that a member of the conspiracy engaged in at least one overt act in furtherance of the agreement.
Here again the judge ignored prior precedent establishing that the words of the statute cannot be provided such an expansive view that any action with which an opponent takes issue may be criminalized. Defrauding the United States, therefore, has always contemplated an underlying crime, not merely the political maneuvering in which Trump was engaged in the lead up to and on January 6.
We have written about the plan to challenge Biden’s certification on January 6 before and you can read about it in greater detail here. In summary, the Electoral Court Act of 1887 provides a mechanism for challenging the electors from the States under a detailed procedure. Indeed, in 2004, Democrats exercised this law to object unsuccessfully to certifying George W. Bush’s 2004 certification by challenge electors from Ohio. Just as with obstruction charge, the court determined that Trump’s team “more likely than not” defrauded the United States by attempting to raise objections to the certification under existing election law. This is criminalizing political opposition and it is transparently improper.
Yet another issue with this second theory of criminality is that fact that Trump’s plan to challenge Biden’s certification at the Joint Session of Congress on January 6 required the assistance of at least one US Senator, one US Representative, and slates of alternate electors from enough States to deny then candidate Biden the necessary 270 electoral votes necessary to be certificated as President, among other people. In fact, on January 6, Trump had eight Senators, one hundred, thirty-nine Representatives, and alternate electors from seven States ready to object to Biden’s certification. Suffice it to write that hundreds of others in addition to Trump and his team believed that challenging Biden’s certification on January 6 did not criminally “obstruct a Congressional proceeding” or “defraud the United States.” Indeed, the breach of the Capitol stemming from the January 6 Rally stopped this process shortly after it had began (thus providing near conclusive proof that Trump did not want the Rally to be anything but peaceful). They and scores of others thought this because, until the Trump era, America abided by the Rule of Law whereby political opposition is not criminalized.
It is impossible to know what President Biden’s DOJ ultimately will decide. That understood, in light of the passage of over fifteen months and the above-discussed weaknesses of the potential legal theories, it is highly unlikely we will see any criminal charges arising out of Trump’s unsuccessful plan to challenge Biden’s certification on January 6.
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