2 years ago
This week’s riveting testimony from the Jan. 6 Committee has driven speculation about whether sufficient evidence now exists to criminally charge former President Donald Trump. While that remains a complex legal question, there is a straightforward crime that could be charged quickly — and the targets are Trump’s band of dishonest attorneys.
Of all the evidence uncovered by the committee, what jumps out to me as a former federal prosecutor are the “fake elector” certificates signed by Trump electors and submitted to former Vice President Mike Pence in an effort to delay the certification of the electoral votes on January 6. Those certificates contained statements that are easily proven false
For example, some listed names of people who weren’t even Trump electors that cycle. Others claimed that they were “duly elected.” When you make a false statement to the federal government, you’re putting a target on your back. If you lie to the U.S. government, you can be charged with a felony. Federal prosecutors have frequently charged defendants ranging from Martha Stewart to Michael Flynn with committing this crime. Prosecutors like charging this statute because it can be straightforward to prove, and judges can look at the full range of the defendant’s conduct at sentencing.
It looks like the DOJ is already moving in this direction. Just this week, the Justice Department reportedly subpoenaed the Georgia Republican Party chairman and executed a search warrant on the phone of the Nevada GOP chairman. That means that a federal judge found that there is a good reason to believe that evidence of a federal crime was located on that phone. Perhaps most significantly, on Wednesday, federal agents raided the suburban Virginia home of Jeffrey Clark, the acting assistant U.S. attorney general who wanted to use the Justice Department to send false statements to state officials in an effort to overturn the election.
Typically, lawyers are not a weak link. In my experience, lawyers have been the most difficult defendants to convict. They’re usually careful about what they say and what they write down. But Trump’s coterie of dishonest legal advisers — John Eastman, Rudy Giuliani, Sydney Powell, Jenna Ellis and Clark — weren’t careful. In their attempts to overturn the results of the 2020 election, they said things that were demonstrably false and were personally involved in lies told to government officials. If prosecutors can prove that one or more of them created the false certificates, and knew that doing so was illegal, they may have criminal liability. If they knew about the false statements and advanced the scheme to transmit them to the U.S. Senate, that may also be enough. Clark is facing the same criminal liability for writing false statements in a matter within the jurisdiction of the executive branch.
We have already heard testimony this week that they knew what they were saying was false. Arizona Speaker of the House Rusty Bowers testified Tuesday that after Giuliani and Trump promised him evidence of 400,000 dead people who voted, Giuliani at one point admitted that he had “lots of theories” but “no evidence.” Similarly, Eastman privately admitted that his theory that Pence could overturn the election would lose 9-0 in the Supreme Court, but he nonetheless tried to convince Trump, Pence and others that his view was right.
Based on the Jan. 6 committee’s testimony over the previous five public hearings, we know that the certificates contained false statements and that they were created to be submitted to the United States Senate. If someone concretely moved forward that scheme — by signing the documents, preparing the documents, or organizing the meetings — they committed a felony if they knew the documents contained false statements and they had the intent to do something illegal.
We also heard extensive evidence of Clark’s dishonest scheme, which violates the same statute. Clark drafted a letter to Georgia election officials falsely stating the DOJ had evidence of fraud affecting the state’s results and that the governor should call a special session of the legislature to approve “a separate slate of electors supporting Donald J. Trump.” Clark was told repeatedly by his superiors at DOJ that absolutely no evidence existed to support that statement, and he had no authority to conduct his own investigation or to direct states whether or how to select electors, but he persisted in promoting the conspiracy until days before Congress was scheduled to certify the electoral college votes on Jan. 6. The evidence that Clark knew his statement was false, and that he knew he was doing something illegal, is significant. That’s why he was in his pajamas watching federal agents search his home early Wednesday.
Because the statute criminalizing false statements requires knowledge that the statement was false and that the defendant was doing something illegal, the attorneys are the easiest targets for DOJ. As attorneys, it will be hard for Eastman, Giuliani and Ellis to claim that they had no idea that they were acting outside the four corners of state law by convening “alternative” electors and submitting them to the Senate even though the state had already submitted official electors. It will also be hard for Clark to argue that he had no idea that what he was doing was illegal, given that his superiors forcefully told him so.
Charging those attorneys is also the best route for DOJ if it wants to build a case against Trump. Any case against Trump is complicated by the fact that he surrounded himself with dishonest attorneys who told him what he wanted to hear. If he was prosecuted, he would likely claim that he was acting on the advice of those attorneys.
But if federal prosecutors build a case against Giuliani, Eastman or Clark first, they could potentially flip one of them and have a key cooperator against Trump. Presumably Trump had forthcoming one-on-one conversations with those attorneys, believing that they were protected by attorney-client privilege.
If one of them agreed to cooperate, DOJ could go to a judge seeking an order permitting disclosure of Trump’s statements under the crime-fraud exception to attorney-client privilege, which permits disclosure of private communications between an attorney and client if they were about ongoing crimes.
Ordinarily, I’d say that is a very uphill battle. But a federal judge in California already disclosed private communications between Trump and Eastman to the committee based on the crime-fraud exception. Prosecutors could point to that ruling and seek a similar ruling as to verbal communications.
Any prosecution of Trump would not be easy. But the committee has made DOJ’s job easier by developing evidence of a straightforward, readily provable crime and revealing how careless dishonest lawyers like Giuliani, Eastman and Clark were, making them ripe targets.
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