By Luke Broadwater and Alan Feuer, The New York Times News Service
WASHINGTON — A federal judge ruled on Monday that former President Donald Trump and John Eastman, a lawyer who advised him on how to overturn the 2020 election, most likely committed felonies, including obstructing the work of Congress and conspiring to defraud the United States.
Eastman was serving as the University of Colorado Boulder’s visiting professor of conservative thought and policy at the time he was advising Trump.
The judge’s comments marked a significant breakthrough for the House committee investigating the Jan. 6 attack on the Capitol, which had laid out in a civil filing the crimes it believed Trump might have committed as it weighs making a criminal referral to the Justice Department.
“The illegality of the plan was obvious,” wrote Judge David O. Carter of the Central District of California. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the vice president to single-handedly determine the results of the 2020 election.”
The Justice Department has been conducting a wide-ranging investigation of the Capitol assault but has given no public indication that it is considering pursuing a criminal case against Trump. A criminal referral from the House committee could increase pressure on Attorney General Merrick Garland to do so.
Carter’s comments came in an order for Eastman, a conservative lawyer who wrote a memo that members of both parties have likened to a blueprint for a coup, to turn over more than 100 emails to the committee as it investigates Trump’s efforts to hold onto power after his election loss.
Many of the documents the committee will now receive relate to a legal strategy proposed by Eastman to pressure Vice President Mike Pence not to certify electors from several key swing states when Congress convened on Jan. 6, 2021. “The true animating force behind these emails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on January 6,” Carter wrote.
Eastman had filed suit against the panel, trying to persuade a judge to block the committee’s subpoena for documents in his possession. As part of the suit, Eastman sought to shield from release documents he said were covered by attorney-client privilege.
In response, the committee argued — under the legal theory known as the crime-fraud exception — that the privilege did not cover information conveyed from a client to a lawyer if it was part of furthering or concealing a crime.
The panel said its investigators had accumulated evidence demonstrating that Trump, Eastman and other allies could potentially be charged with criminal violations including obstructing an official proceeding of Congress and conspiracy to defraud the American people.
On Monday, Carter, who was nominated by President Bill Clinton, agreed, writing that he believed it was “likely” that the men not only conspired to defraud the United States but “dishonestly conspired to obstruct the joint session of Congress on Jan. 6, 2021.”
“President Trump and Dr. Eastman justified the plan with allegations of election fraud,” he wrote, “but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.”
CU Boulder’s leaders stripped Eastman of his public duties following his appearance at the Trump rally that preceded the attack on the Capitol, accusing him of spreading “repugnant” and baseless conspiracy theories about election fraud.
The university, however, did not fire him, and continued to pay his privately funded $185,000 salary for the duration of the spring 2021 semester.
The Denver Post contributed to this report.
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