Another extraordinary ruling takes Trump one step closer to being indicted on conspiracy

Another extraordinary ruling takes Trump one step closer to being indicted on conspiracy

On Wednesday, Federal District Court Judge David Carter handed down another blunt ruling, stripping away attorney-client privilege from communications between Donald Trump and attorney John Eastman. These documents relate directly to claims that Eastman made before the Georgia state senate in an effort to justify reversing the results of the 2020 election and to support a scheme to halt the final certification of electors on Jan. 6.

Eastman had tried to protect the documents by claiming they were either directly created as legal advice for Trump or as a means of communicating strategy in case of litigation—which are protected categories of communication. In fact, the court found that almost everything Eastman had written fell into the category of “providing legal opinion.” This kind of work, Judge Carter noted, “is virtually
undiscoverable.” That is, almost never allowed to be entered into evidence. However, there is one big factor that negates any such claims, and Judge Carter thought that factor was very clear when it comes to some of the documents in this case.

“The crime-fraud exception applies when (1) a “client consults an attorney for advice that will serve [them] in the commission of a fraud or crime,” and (2) the communications are “sufficiently related to” and were made “in furtherance of” the crime.”

 And now, 33 documents from Eastman are no longer protected.

Back in March, Judge Carter made an initial ruling about the information Eastman presented, and the support it received from Trump. In particular, he noted that Trump had signed his name to a suit that included a series of claims about voter fraud, even though it seemed clear from communications already made public that Trump understood the numbers being used were simply pulled out of thin air. That led to this moment in Carter’s ruling:

As the Court discussed at length above, the evidence demonstrates that President Trump likely attempted to obstruct the Joint Session of Congress on January 6, 2021.

Carter went on to note that this obstruction was intended to obstruct a “lawful proceeding” and to block a “lawful function of government.” Both of which are felonies. There has been no other ruling in which a federal judge found a former executive is likely guilty of a felony, not even in the case of Richard Nixon.

In the Oct. 19 ruling, Carter was equally frank about Trump and Eastman’s actions.

… President Trump was more likely than not engaged in or planning an obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c)(2), and a conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, when he sought the advice of Dr. Eastman.

Overall, Carter ruled that 24 documents did not amount to protected work. Another eight documents were released on the basis that the crime-fraud exception erased any attorney-client privilege that might otherwise exist.

In the case of these eight documents, Carter didn’t just find that they were related to Trump’s scheme to overturn the election in Georgia, but that they were created in furtherance of that scheme. This still leaves over 500 documents that were created by Eastman, for Trump, in the period after the election. Those documents remain hidden. For now.

On Dec. 3, 2020, Eastman appeared before a meeting of the Georgia state senate and made a series of claims, including that the election in Georgia had been affected by allowing 66,000 underaged people to register and vote. Later investigation found that exactly four people who were under 18 had registered in Georgia, and that all were over age 18 by the time of the election. 

Among the documents now made available as evidence are a series of emails in which Eastman makes clear that he had ‘concerns’ about using the specific number that was included in the claims being filed as a federal lawsuit in Georgia. One of the emails also shows that Trump had been “made aware” that the values were not true. Despite Eastman making it clear that he could not back the numbers, Trump signed off on those values. As Carter wrote in his latest ruling:

President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers ‘are true and correct’ or ‘believed to be true and correct’ to the best of his knowledge and belief.

That false numbers in Trump’s lawsuit, and those Eastman paraded before the state senate, were just a subset of false claims made by representatives of Donald Trump’s campaign as they tried to convince Georgia officials to throw out the state’s legally elected slate of electors and replace them with a group of false electors who would support Trump. As Rebekah Sager has reported, Trump’s campaign also engaged in copying voting files, invading an election office to tamper with voting machines, and putting together those fake electors in a secret plan. He’s followed up by threatening the state attorney general while denying involvement in his own campaign.

Trump’s actions in Georgia have been so blatant that the state has become a somewhat improbable hotspot in the effort to finally land a well-justified indictment against the conspirator-in-chief. Trump has continued to cite the false numbers in rallies, on right-wing media, and on his failing social media platform.

Public Policy Polling’s Tom Jensen joins us on The Downballot to explain how his firm weights polls to reflect the likely electorate; why Democratic leads in most surveys this year should be treated as smaller than they appear because undecided voters lean heavily anti-Biden; and the surprisingly potent impact abortion has had on moving the needle with voters despite our deep polarization.

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