The long arm of the law is crashing down on the insurrectionists who attacked the Capitol on Jan 6 last year.  The leader of the Proud Boys – the white supremacist group Trump defended in his debate with Joe Biden in 2020 with a special message of support to them: “Stand back sand stand by” – was indicted this month for conspiracy to obstruct Congress.  Four other Proud Boys have already been indicted.  And in the first criminal trial of a rioter on that day, a Texas man was convicted on all counts of carrying a weapon and threatening witnesses to his deeds.

The long arm of the law is now reaching much higher

A court proceeding in California over whether an attorney for President Trump can refuse to share documents with the House Select Committee investigating the January 6 insurrection at the US Capitol in Washington has revealed the possibility that Trump may face criminal charges for all of his efforts to overturn the 2020 presidential election.

John Eastman was an attorney advising Trump.  He developed a legal argument that Vice President Pence could refuse, as the Electoral College votes to award the election to Joe Biden were being counted on that fateful day, to recognize the electoral votes of several states Biden won, preventing Biden from becoming president.  

Trump fully embraced the Eastman arguments – which no reputable constitutional scholars accept – to pressure Pence mercilessly to so act.  Pence refused, concluding that any such attempts to go against the laws governing the counting of the Electoral College votes was “unconstitutional” and “un-American”.  Pence’s refusal to cave to Trump enraged the president, and led the mob, as they rampaged through the Capitol that day, to chant, “Hang Mike Pence!” The Secret Service took Pence deep underground in the Capitol until the rioters were expelled and a semblance of order restored – enough for Pence that night to preside over the joint session of Congress and affirm that Biden was, indeed, the president-elect.

The House Select Committee wants Eastman’s records on his advice, meetings and events leading up to January 6.  Eastman is claiming attorney-client privilege. It is a legitimate claim and worthy of litigation.  The House lawyers argue, however, that attorney-client privilege cannot shield criminal activity.  This counter-argument has been tested and validated over decades of case law.  The court in California will rule on this matter, and its decision will determine whether Eastman’s notes and emails and memos must be turned over to the Select Committee.

To make its case that Eastman is shielding possibly criminal activity by Trump, the House Select Committee filed an extraordinary brief that shows its view that Trump may well have committed crimes in trying to overturn the election, and that this activity – including what Eastman did and counselled – occurred from the day after the election through the insurrection at the Capitol.

The House Committee’s allegations – 221 pages of legal argument and documentary evidence – are stark:

“The evidence detailed above provides, at minimum, a good-faith basis for concluding that President Trump has violated section 18 U.S.C. § 1512(c)(2). The elements of the offense under 1512(c)(2) are: (1) the defendant obstructed, influenced or impeded, or attempted to obstruct, influence or impede, (2) an official proceeding of the United States, and (3) that the defendant did so corruptly.

The counting of the Electoral College votes was an “official proceeding.” The brief goes on:

“The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States in violation of 18 U.S.C. § 371. An individual “defrauds” the government for purposes of Section 371 if he “interfere[s] with or obstruct[s] one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.”

The evidence supports an inference that President Trump, Plaintiff, 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 Eastman documents will shed further light on these issues – indeed, they are crucial evidence. We will see if the California court agrees.

The Select Committee will hold public hearings in the coming weeks.  The committee cannot bring any criminal charges.  Its job is to document what happened on January 6 and who was involved in those events and what they did:  to tell the full story of that day.  If the committee concludes that criminal activity associated with these events has occurred, it can refer those matters to the Justice Department for its assessment – and the Justice Department can determine if criminal prosecution is warranted.  (This process is what happened when subpoenaed witnesses, such as Trump associate Steve Bannon, refused to testify before the committee.  The Justice Department convened a grand jury to examine his refusal to testify, and Bannon has been indicted for obstruction of Congress and will go to trial this year.)

If the House Committee ultimately concludes, after all the evidence they have gathered and all the testimony from witnesses, that Trump may have broken the law, and his prosecution should be assessed, it can make such a recommendation to the Justice Department.  Indeed, Rep Adam Schiff, a leading member of the committee, said recently:

“The Justice Department has the obligation to determine if a crime is committed and whether anyone, including the former president, should be prosecuted. That’s the department’s job. They’re not waiting for us to make a referral. That’s not what the Justice Department does.

Now, we may make a referral at the end of our investigation.”

No former president has been criminally prosecuted.  Spiro Agnew, former vice president under Richard Nixon, went to jail on corruption charges that forced his resignation in 1973. Vice President Aaron Burr was not prosecuted for killing Alexander Hamilton in a duel in New Jersey in 1804, but he was later tried for treason in Louisiana, and was acquitted.  

The White House believes it is a live issue.  Press Secretary Jen Psaki last week:

“The former president subverted the Constitution in an attempt to overturn a lawful and fair election. His actions represent a unique and existential threat to our democracy, and the president [Biden] has been clear that these events warrant a full investigation.”

Trump will have none of it. Speaking of himself in the third person, Trump said:

“The Unselect Committee’s sole goal is to try to prevent President Trump, who is leading by large margins in every poll, from running again for president, if I so choose. By so doing they are destroying democracy as we know it. Their lies and Marxist tactics against political opponents will not stop the truth, or the biggest political movement, Make America Great Again/America First, in the history of our Country.”

The Select Committee will complete its work.  It will make findings. If the Select Committee recommends that the Justice Department assess whether Trump engaged in criminal activity to overturn the 2020 presidential election, the Attorney General may well move to begin the process to …  lock him up.