The ‘Overwhelming’ Evidence That Trump & Co. Committed Conspiracy

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Coup artisan John Eastman is trying to keep hundreds of pages of emails away from the January 6 committee, claiming they’re protected by his attorney-client relationship with former President Donald Trump. Thing is, attorney-client privilege doesn’t apply if the attorney and client are plotting a crime.

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That’s why the committee dropped its bombshell in a brief before a judge this week. And what that bombshell basically said was, “Your Honor, we have good reason to believe Donald Trump led a criminal conspiracy including Eastman and others to overturn the election, so make him hand over those emails.”

It’s a huge deal: A bipartisan congressional investigative committee telling a court in writing it has evidence that a former president plotted a coup

This could end with the January 6 committee making a criminal referral to the Justice Department to prosecute Trump. But only Attorney General Merrick Garland can make that call.

The committee says it believes Trump participated in a conspiracy to defraud the United States and to obstruct an official proceeding, in addition to common-law fraud. Cue a conversation I had last week with former U.S. Attorney for the Eastern District of Michigan Barbara McQuade. McQuade recently published “United States v. Donald Trump”, a “prosecutor’s memo” laying out the simplest way to charge Trump for trying to overturn the election.

President Donald Trump arrives to speak at a rally Wednesday, Jan. 6, 2021, in Washington.

McQuade’s memo is a mind-meld with the committee’s brief. But a criminal referral will only matter if AG Garland is willing to take some risks. I later emailed McQuade after the committee’s brief came out. Our chat is edited for length.

What do you think about the committee’s claim that Trump likely violated the law here?

I just read it. It is a sound legal analysis based on the known facts.

You say that based on what we think we know about Donald Trump and Jan. 6, he could be charged with at least two federal crimes.

“Conspiracy to defraud the United States” is when two or more people agree to obstruct or impede the proper functioning of government. Congress, by Constitution and statute, is supposed to show up at the Capitol on Jan. 6, count the votes, and certify the winner of the presidential election. Trump and others knowingly conspired to interfere with the peaceful transfer of presidential power, for reasons Trump knew to be false. That’s fraudulent.

I also theorize that when Trump tried to get Mike Pence to abuse his authority as vice president, he and his co-conspirators were conspiring to obstruct a federal proceeding. That’s also a crime.

But it’s not intentional fraud if Trump believes that the election was really stolen, right? I’ve heard this before: “He was just trying to prevent a fraud he really believed in.” Does that matter?

Yes. It’s like that Seinfeld‘ episode where George tells Jerry, “If you believe it, it’s not a lie.” And it would be essential to prove that Trump knew this was false. Trump after the election was told again and again—by DHS, the attorney general, his own intel officials—that there is no fraud in the election.

At some point, it’s reasonable to draw an inference that he knew it wasn’t true. If he were to say, “The sky is green!” and a dozen different people said, “We’ve looked into it, and the sky’s just not green,” and there is zero evidence, I think it’s fair to conclude that the person knew the sky was not green.

As for Pence, it’s indisputable that Trump pressured him to disrupt the proceeding. He did it publicly. He did it over Twitter, he did it at the rally. He did it privately. The only question is, did Trump know it to be fraudulent?

So what’s the weakest part of your case?

I suppose it’s the question of what Trump knew and didn’t know. It does rely on circumstantial evidence of an inference. But judges often instruct juries: We can’t read another person’s mind. So you have to look at the totality of the circumstances, all of the things the person said and did to determine intent. And from that, jurors may draw reasonable inferences based on their common sense and real-life experiences.

Hi, I’m Donald Trump’s defense attorney. My client was acting in good faith. John Eastman prepared a legal memo showing Mike Pence how to return electors to the states. You don’t have to like it, but it’s not illegal.

Yeah, an “advice of counsel” defense is a potential defense. But when you’ve got legal scholars and DOJ lawyers telling Trump no; when a number of DOJ and White House lawyers are prepared to resign over this, saying “this is not lawful,” he ultimately does back down. That’s after they make it clear that there’s going to be a mass resignation.

Remember that a conspiracy does not require that you be successful, only that you agreed to do that thing and that you take overt action in furtherance of the conspiracy. And I think Trump did it many times over.

But this is no ordinary defendant.

And one wonders whether the Justice Department is willing to make that leap. I also acknowledge that deciding to charge a president is no easy task.

A lot of people think Merrick Garland doesn’t have the inclination for the charges you’re envisioning. They’d be perceived as too political.

I have great respect for Merrick Garland. I think one of the reasons he was chosen to be AG at this moment in history was a desire by the president to restore independence and public trust to the Justice Department. So that may make him reluctant (to make a politically incendiary decision) even when people within his own office are arguing, “You’ve got the facts! You’ve got the law!” The discretionary problem has to be satisfied too.

You could say the DOJ was politicized when Trump turned Jeffrey Clark loose to threaten people and to intimidate state officials to overturn the election. So what’s the remedy for that damage? I guess that’s the dilemma.

Look, I don’t envy Garland and the position he’s in to make this very hard decision. But he knew when he entered office that these are the kinds of calls he would have to make.

Pretend you’re still a U.S. Attorney. Could you win this case in front of a jury?

Yeah, I think so. Assuming the facts I included from books, reporting, and the January 6 committee held up in a grand jury, I think I could get 12 jurors to set aside what they already think and know about Trump and decide the case based on the facts and the law. I think the reasonable inference of knowledge and intent is overwhelming.

I appreciate the title “United States v. Donald Trump”, but this is the internet in 2022. You could have just called it “Lock Him Up.”

Yeah, you know, I’m a prosecutor. I play it straight.

T.W.I.S.™ Notes

Who recruited John Eastman into Trump’s cadre of lawyers planning election lawsuits months before he lost? This Week in Subpoenas has your answer: It was lawyer Cleta Mitchell, co-star of the infamous January 2021 phone call where Trump coerced Georgia’s secretary of state to “find 11,870 votes.”

Mitchell got a letter this week compelling her to testify about the coup attempt. In addition to the Jan. 2 call, Mitchell was also in touch with Trump on and before Jan. 6, according to the committee.

Mitchell was one of a half dozen lobbyists and lawyers subpoenaed this week.

By the way, Mitchell wasn’t just a Trump coup lawyer (on tape). She pursued $10 million worth of voting restrictions on behalf of conservative groups, and helped raise money for the Arizona GOP “Cyber Ninjas” audit. Wouldn’t it be wild if someone with that track record serves on the federal government’s election integrity advisory board? It happened!

• Donald Trump Jr. fiancée and terrifying speech-giver Kimberly Guilfoyle got a subpoena Thursday, so the committee can ask her about her meetings with Junior’s dad and her prolific fundraising for the Jan. 6 rally. Chairman Benny Thompson said Guilfoyle was getting a subpoena because she “backed out of her original commitment to provide a voluntary interview.”

• No executive privilege for former Trump trade adviser Peter Navarro and National Security Advisor turned pardoned felon Michael Flynn. President Joe Biden denied the privilege claims the pair were using to get out of answering January 6 committee subpoenas. This could put the pair on a track to contempt of Congress and possible prosecution if they refuse to appear.

El Paso is prologue

The first elections under the Texas GOP’s new voting restrictions went down on Tuesday, and the results for voter access were abysmal. A midterm primary is a low-turnout affair, but still, thousands of mail-in ballots were rejected as voters struggled with new ID rules under SB 1. These are the same restrictions that sent Democrats fleeing the Texas state House in protest last summer.

Rejection rates for mail-in ballots ran as high as 45% in Democratic strongholds like El Paso, and in Harris County, home of Houston. A New York Times analysis found that ballot rejection rates spiked thirtyfold in some of the state’s most populous counties, which happens to also be where Democrats are concentrated (and more likely to vote by mail).

Wisconsin: Hold my Leinenkugel

The Wisconsin GOP’s latest attempt to discredit Trump’s loss in 2020 is out. This one comes from former state Supreme Court Justice Michael Gableman, hired by GOP Wisconsin Senate leaders who are navigating between the truth and Trump’s demand to undermine the election.

Gableman says Wisconsin should rescind its 2020 electors, which is not legally a thing. He also calls for dismantling Wisconsin’s bipartisan elections commission, which legally could be a thing. His presentation in an assembly committee this week got weird at times, including videos of a lawyer quizzing elderly nursing home residents on their competency to vote.

Gableman attended pillow guy Mike Lindell’s Cyber Symposium last summer, and also made a pilgrimage to see the Cyber Ninjas operate in Arizona. But the implications for the future are serious, as Gableman, Trump, and many in the GOP continue to try to undermine faith in fair elections.

“This is just kind of a glimpse of what we could expect in 2023,” especially if Democrats lose the governor’s office, warned Matt Weil, director of the elections project at the Bipartisan Policy Center.

Miami cheat

Recently I told you about senior citizens in Miami complaining that someone switched their party affiliations from Democrat to Republican without their knowledge. Now there’s evidence the practice is widespread, targeting elderly, low-income, first-generation Americans in South Florida.

Miami Herald reporters went to neighborhoods where public records showed high concentrations of recent party switches. Then they knocked on more than 140 doors. In four out of five cases, residents were unaware their party registration had been changed.

It all, once again, points back to canvassers working for the Florida GOP. “I feel mocked, humiliated,” said Maria Sanchez, 73, of Little Havana, one of the residents whose party ID was changed without her consent.

“You could call this elder abuse.” – Election attorney Juan-Carlos Planas, on reports that hundreds of elderly Floridians had their voter registrations changed from Democrat to Republican without their knowledge.

(Tevye voice) Sedition! — The first of 11 Oath Keepers charged with plotting the violent overthrow of the U.S. government on Jan. 6 has pleaded guilty. Joshua James of Arab, Alabama, pleaded guilty to seditious conspiracy on Wednesday. That means James not only admits to the rare charge of sedition but also agrees to cooperate with prosecutors pursuing other Oath Keepers, like founder Stuart Rhodes. It also gives the lie to Trumpist claims that Jan. 6 was a patriotic protest. No, Joshua James admits under oath, it was a violent attempt to overthrow the government.

Dad of the Year — Meanwhile, the first trial of an alleged Jan. 6 rioter got underway in Washington this week. Guy Reffitt, a member of the far-right extremist Three-Percenter militia, is charged with five felony counts, including weapons charges and obstruction of justice. He’s pleaded not guilty. Prosecutors plan to introduce evidence that Reffitt led a mob to attack the Capitol and incited them by calling for the death of lawmakers like Nancy Pelosi. Reffitt’s son Jackson testified for the prosecution Thursday, saying his father talked so often in 2020 about “doing something big” that Jackson became paranoid about what he might do. Jackson said he learned of his father’s alleged role in Jan. 6 while watching TV coverage, and that at one point his father texted him: “We did it in the CIVIL WAR and now we are doing it again. It’s the government that is going to be destroyed in this fight.”