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Then-Chapman University law professor John Eastman stands at left as former New York Mayor Rudolph Giuliani addresses a pro-Donald Trump on Jan. 6, 2021. (AP) Then-Chapman University law professor John Eastman stands at left as former New York Mayor Rudolph Giuliani addresses a pro-Donald Trump on Jan. 6, 2021. (AP)

Then-Chapman University law professor John Eastman stands at left as former New York Mayor Rudolph Giuliani addresses a pro-Donald Trump on Jan. 6, 2021. (AP)

Louis Jacobson
By Louis Jacobson March 4, 2022

The House committee investigating the Jan. 6 attacks has made public its most detailed reasoning about how those events might have broken criminal laws. Filings in federal court show the committee believes that then-President Donald Trump violated the law in an attempt to get himself declared the winner of the 2020 presidential election after he lost to Joe Biden.

Experts said the March 2 filing is a landmark moment in the investigation, but they cautioned that actual prosecutions would be a long way off, if they ever happen at all.

"Proving criminal intent beyond a reasonable doubt to a unanimous jury in a criminal case is a much higher bar" than what the House is seeking in its filing, said Randall Eliason, a George Washington University lecturer in law. "So although I see it as a significant development, it should not be taken as a sign that criminal charges are definitely coming."

Here are some questions and answers about this development and its significance.

What happened, exactly?

The filing was made as part of the House committee’s effort to obtain emails from John Eastman, a former professor and dean at Chapman University’s Fowler School of Law. In the weeks after the 2020 election, Eastman served as a legal adviser to Trump, including possible legal remedies for what Trump alleged were improprieties in the balloting. 

Trump’s challenges were almost entirely thrown out of the courts, but one possible method Eastman worked on had to do with "alternate" elector slates that could be presented to Congress when it was formally counting the votes on Jan. 6, 2021.

News reports and a memo from a Trump ally have suggested the existence of a plan to pressure then-Vice President Mike Pence to recognize an alternate slate of electors from some states, which, if accepted, would be enough to hand the presidency to Trump. In his role as president of the Senate, Pence oversaw the formal counting of electoral votes on Jan. 6, 2021.

Eastman wrote a memo explaining a "Jan. 6 scenario" that included the submission of seven dual slates of electors to Pence. Eastman proposed that Pence announce that he had multiple slates of electors and due to disputes in seven states, no electors from those could be valid, thereby tipping the election to Trump.

The Trump campaign didn’t hide this strategy. Stephen Miller, a Trump campaign official, said on Fox News Dec. 14, 2020, that "as we speak today an alternate slate of electors in the contested states is going to vote and we are going to send those results up to Congress. This will ensure that all of our legal remedies remain open." 

But Pence refused to go along with the plan. On Jan. 6, he issued a statement saying that under the Constitution he did not have "unilateral authority to determine which electoral votes should be counted and which should not." 

As Pence accepted the results from each state, the counting was interrupted by a pro-Trump riot. It finished after control was restored later that day.

The House committee exploring the events of that day has been seeking emails from Eastman as part of its investigation. Eastman argued that his role as a lawyer prevents him from turning over those emails. But the House disagrees.

There’s an exception to lawyer-client privilege known as the "crime-fraud exception." Under this exception, attorney-client privilege does not exist if the advice is given in connection with a client who is involved in crime or fraud, said James Robenalt, an attorney with the firm Thompson Hine LLP. 

So if the House wants to get Eastman’s emails, it needs to convince a court that there’s reason to believe he participated with the client in criminal activity. To make that argument, the House needed to submit a filing that includes its rationale about why Eastman’s activities on behalf of his client may have abetted criminality. That’s the filing submitted on March 2.

What does the House argue in the filing?

The House filing suggested that Eastman directly encouraged government officials to ignore the Electoral Count Act, an 1887 law that governs the counting of electoral votes.

"The evidence supports an inference that President Trump and members of his campaign knew he had not won enough legitimate state electoral votes to be declared the winner of the 2020 Presidential election during the Jan. 6 Joint Session of Congress, but the President nevertheless sought to use the Vice President to manipulate the results in his favor," the House document reads.

The filing argued that the committee has evidence that "provides, at minimum, a good-faith basis for concluding that President Trump has violated" a federal law, namely that he "obstructed, influenced or impeded," or attempted to do so, "an official proceeding of the United States" and did so "corruptly."

The filing also said the evidence suggests that Trump, Eastman, "and several others entered into an agreement to defraud the United States by interfering with the election certification process, disseminating false information about election fraud, and pressuring state officials to alter state election results and federal officials to assist in that effort."

The filing argues that Eastman "first crafted a ‘plan’ to justify" the use of the alternate electors, and that he and Trump "then met and spoke with the Vice President and members of his staff on several occasions on Jan. 4-6 in an attempt to execute Plaintiff’s plan. … The evidence developed to date indicates that these actions were all part of a concerted effort to achieve a common goal: to prevent or delay the certification of the 2020 presidential election results."

The committee appended supporting evidence drawn from more than 550 interviews and other evidence it has collected.

What are the limitations of this argument?

This is not a prosecution itself, nor even a formal referral (or recommendation) to the Justice Department to initiate prosecution of a criminal violation. And of course, even if a prosecution of Trump or others were to proceed, there’s hardly a certainty that he would be convicted.

Instead, the filing simply contains evidence the House is using to support its argument that it needs to review Eastman’s emails. The judge may rule in Eastman’s favor, and even if he doesn’t, his ruling could be appealed.

So why is the material in the filing important?

The filing represents a notable step: A federal government body has stated for the record, on paper, that there is evidence to support the idea that Trump and Eastman may have broken criminal laws.

Barbara McQuade, a law professor at the University of Michigan and former U.S. Attorney for the Eastern District of Michigan, said the argument laid out in the filing is "significant."

"For the first time, the committee lays out a legal theory and lists the evidence for charging Trump with crimes," McQuade said. "Under this theory, it is unnecessary to show that Trump conspired with the Jan. 6 rioters, only that he pressured Mike Pence to abuse his power to certify the election results."

Mark Osler, a law professor at the University of St. Thomas, added that this development is noteworthy because an earlier independent investigation of Trump and his allies by special counsel Robert Mueller could have recommended prosecuting the then-president, but it did not, citing longstanding legal opinions by the Justice Department that it cannot prosecute a sitting president

"It is significant in the current context, in large part because the Mueller Report did not make a similar conclusion," Osler said.

How strong is the case being made in the filing?

Officially, for the purposes of the filing, the House committee has a much lower burden of proof than in a criminal trial, namely whether the evidence provided supports a good-faith belief that a crime may have been committed.

That said, the filing documents offer "a great deal of evidence from which a jury could reasonably infer that Trump knew his claim of voter fraud was false," McQuade said. "The filing notes that one court found that there was ‘not a scintilla’ of evidence of election fraud — that is, Trump simply made it up."

What is the likelihood that a criminal case could actually be prosecuted? 

To charge a crime, the Justice Department has to meet a high threshold: that it’s probable that a conviction can be obtained and sustained, McQuade said.

That may be a high bar, but a formal Justice Department investigation could leverage some powerful tools.

The department "could conduct a more thorough investigation than the Jan. 6 committee can," McQuade said. "It could use a grand jury to question members of Trump’s inner circle under oath and use the court’s contempt power to enforce them, under penalty of jail and without the delays we have seen" with efforts by Congress to compel reluctant witnesses. The department also has the power to seek search warrants to obtain the content of email and text communications, a power the committee lacks, she said.

But ultimately, whether to proceed with that course remains a decision for the Justice Department.

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Our Sources

Court filing, March 2, 2022

Washington Post, "Jan. 6 committee alleges Trump, allies engaged in potential ‘criminal conspiracy’ by trying to block Congress from certifying election," March 2, 2022

Washington Post, "Understanding the criminal allegations the Jan. 6 committee is constructing against Trump," March 3, 2022

New York Times, "Jan. 6 Committee Lays Out Potential Criminal Charges Against Trump," March 2, 2022

PolitiFact, "What you need to know about the fake Trump electors," Jan. 28, 2022

Email interview with James Robenalt, attorney with the firm Thompson Hine LLP, March 3, 2022

Email interview with Barbara McQuade, law professor at the University of Michigan and former U.S. Attorney for the Eastern District of Michigan, March 3, 2022

Email interview with Mark Osler, law professor at the University of St. Thomas, March 3, 2022

Email interview with Randall Eliason, George Washington University lecturer in law, March 4, 2022

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