Brief paints clearest picture yet of culpability for January 6 riots

The House Select Committee continues to investigate the causes that contributed to the violence at the Capitol on January 6, 2021, the promotion of unsupported claims of election fraud, and the various pressure campaigns to overturn the results of the 2020 election. In a democracy, no right is more sacred than the right to vote and to have it properly counted.

On Jan. 20, 2022, John Eastman -- former dean of Chapman University Law School and advisor to Donald Trump -- sued Bennie Thomson, chairman of the Select Committee, in federal district court in California challenging its subpoena to obtain emails and other documents related to its investigation (22-cv-00099). The documents are stored on the Chapman University server, which Eastman used while on the Chapman faculty. Eastman, who purports to being Trump's lawyer, argues that the documents sought during the period January 4-7 are protected by the attorney-client privilege and work product rule.

On March 2, the Office of General Counsel for the House of Representatives filed its brief in opposition to Eastman's complaint. The GC argues that Eastman has failed to establish the existence of a legitimate attorney-client relationship or the proper application of the work product doctrine. It maintains that the documents should be reviewed in camera by the court under the crime/fraud exception, which provides that legal advice in furtherance of an illegal or fraudulent activity is not protected.

The GC argues that the "evidence and information available to the Committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts" and that Eastman's advice was relied upon in furtherance of those activities.

Eastman played an important role in attempting to overturn the election. He drafted a publicly available memorandum outlining the legal strategy to allow Trump to remain in office for a second term even though he lost the election. Pursuant to the strategy, Eastman and Trump repeatedly asked Vice President Mike Pence to use the unilateral authority as the presiding officer of the Joint Session of Congress to refuse to count the state certified electoral votes. Eastman and Trump also were involved in persuading state legislators to reject the election results and to submit alternate slates of electors to Congress.

In addition to persuasively rejecting Eastman's legal arguments, the GC provides the legal roadmap, based on the evidence collected by the committee during the past six months, for the possible criminal prosecution by the Department of Justice of Eastman, Trump and others.

The evidence establishes the election was not stolen, and Trump was repeatedly told this. Trump and Eastman were aware that numerous courts rejected the claims of fraud. Countless audits, recounts and commissions also rejected the claim of election fraud.

Trump and Eastman were also aware that members of the Trump administration rejected claims of widespread fraud. In 2020, Christopher Krebs, the head of the Cybersecurity and Infrastructure Security Agency, released the following statement: "There is no evidence that any voting system deleted or lost votes, changed votes, or in any way compromised." For his audacity, Krebs was fired five days later by Trump. Attorney General William Barr publicly announced that the DOJ uncovered no voting fraud that affected the outcome of the election. Barr retired as AG shortly thereafter. Other DOJ attorneys, including acting Attorney General Jeffery Rosen, told Trump the same. Trump threatened to replace Rosen.

On Jan. 2, 2021, Georgia Secretary of State Brad Raffensperger told Trump that no significant election fraud occurred in Georgia. The evidence debunks the claim of election fraud. A 2020 Trump campaign memo, which surfaced in the Dominion Voting Systems litigation, concluded that claims about voting machine fraud were false.

Consideration of the crime/fraud exception, required the GC to identify the criminal statutes potentially violated by Eastman, Trump and others. They include: (1) obstruction of an official proceeding (18 U.S.C. Section 1512(c)(2)); (2) conspiracy to defraud the United States (18 U.S.C. Section 371); and (3) fraud under the District of Columbia common law.

Prosecution for obstruction requires proving that a defendant obstructed or attempted to obstruct an official proceeding and did so "corruptly," which means for a wrongful or improper purpose. Counting the electoral votes has been held to be "an official proceeding" by the six judges from the federal district court hearing cases involving the rioters at the Capitol. The evidence outlined in its pleading also shows that by repeatedly pressuring Pence to abuse his authority as vice president, Eastman as well as Trump wrongfully attempted to obstruct the electoral certification process. The GC argues that the evidence "provides, at a minimum, a good-faith basis that President Trump has violated" the obstruction statute. The same holds true for Eastman.

An individual "defrauds" the government for purposes of Section 371 if that person interferes with or obstructs a lawful government function by "deceit, craft, or trickery, or at least by means that are dishonest." The government must prove that the defendant entered into an agreement to obstruct a lawful function of government by deceitful or dishonest means, and that a member of the conspiracy engaged in an overt act. According to the GC, the evidence supports the view that Eastman, Trump, as well as others entered into the agreement to defraud the government by interfering in the election process, disseminating false information about election fraud, pressuring state officials to alter state election results, and attempting to use federal officials to assist in that result.

The GC also argues that the evidence supports a good-faith, reasonable belief that Trump and the members of his campaign engaged in common law fraud. Trump made numerous false statements to the public at-large and to various state and federal officials on Facebook, YouTube and elsewhere. Trump "did so with the knowledge of the falsity of these statements" and with the intent that his listeners would take steps in reliance on the statements. Several defendants in pending Jan. 6 criminal cases cite Trump's allegations about the stolen election as the motivation for their action. Trump's false statements about the election being stolen were informed, at least in part, by Eastman.

The Select Committee's task is investigative and legislative. It is not charged with conducting a criminal investigation. Thus, the citation of the law in its pleading is not intended to be comprehensive. Other federal laws that were potentially violated include seditious conspiracy (18 U.S.C. Section 2384) and conspiracy to intimidate (18 U.S.C. Section 372).

The GC's brief paints the clearest picture to date for the potential criminal culpability of Eastman, Trump and others. A strong public interest exists in protecting the integrity of our elections. The DOJ should investigate and prosecute those at the apex of the attempt to overturn the 2020 election. Without public accountability, America may not be so lucky the next time an assault on our electoral system and democracy occurs. 