Judge Carter Says The Obvious Out Loud

The issue at hand, the only issue, was whether John Eastman would be compelled to produce emails relating to his involvement with Trump’s trying to remain in office despite having lost an election. Eastman argued that the emails were protected as either privileged communications or work product. The January 6 Commission argued that they were discoverable under the “crime/fraud exception.”

Judge David Carter seized the opportunity to say the obvious out loud.

The illegality of the plan was obvious. 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. As Vice President Pence stated, “no Vice President in American history has ever asserted such authority.” Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed. With a plan this “BOLD,” President Trump knowingly tried to subvert this fundamental principle.

Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.

This holding, of course, presumes two things that remain, as yet, unproven. First, that Trump has a sixth grader’s grasp of civics. Second, that Trump wasn’t so delusional as to believe, despite being told that there was no factual basis for his “Stop the Steal” scam, that he was not rejected by a majority of Americans who found him too repugnant to endure.

Does this mean Judge Carter found him guilty of a crime? Not exactly.

Carter’s conclusions do not necessarily mean that Trump or Eastman could be successfully prosecuted for either of these crimes. The preponderance-of-the-evidence standard for applying the crime-fraud exception is much less demanding than the proof beyond a reasonable doubt required for a criminal conviction.

Aside from the matter before Judge Carter being civil, addressing Eastman’s assertion of confidentiality to prevent compulsion to disclose his emails, Trump was not a party to the case. There was no one arguing on his behalf, whether about his ignorance or incapacity, or any other defense to the otherwise obvious effort to undermine one of the most fundamental and enduring tenets of democracy, that the president is elected.

So even if the January 6 committee ends up recommending criminal charges, the Justice Department might sensibly decline to pursue them. But Carter’s ruling, which calls Eastman’s plan “a coup in search of a legal theory,” reminds us of how outrageous and unprecedented Trump’s reaction to his electoral defeat was.

Whether Garland’s Department of Justice will ever pursue prosecution remains a mystery. There are political considerations, the unseemliness of prosecuting a former president, a political rival, a potential candidate in the next presidential election, which will likely turn an ignorant, amoral, lying narcissist into a martyr to those who still don’t grasp that he has only two motivations, self-aggrandizement and self-enrichment.

And there remains a very real possibility that if prosecuted, he will not be convicted, whether because he can raise enough smoke to create doubt as to the venality of his scam or because he invokes the M’Naghten rule. Even Trump is entitled to the presumption of innocence. Even Trump deserves due process, as our principled support is demonstrated by our willingness to assure procedural fairness even to the most represhensible person, and this was not available in the Eastman action, where Trump was not a party and the conclusion was based on a preponderance of the evidence.

“More than a year after the attack on our Capitol, the public is still searching for
accountability,” Carter writes. “This case cannot provide it. The Court is tasked only with deciding a dispute over a handful of emails. This is not a criminal prosecution; this is not even a civil liability suit. At most, this case is a warning about the dangers of ‘legal theories’ gone wrong, the powerful abusing public platforms, and desperation to win at all costs.”

Judge Carter’s decision isn’t what many have sought to make of it, a judge concluding that Trump committed crimes. But it is a conclusion that what happened was very wrong, utterly baseless and conduct that no rational person should believe tolerable. Whether Trump is guilty of criminal conduct may never be determined, but there is no serious doubt that what Trump sought to do was a disgraceful travesty meant to undermine our democracy by a loser. Judge Carter made that clear.