Judge David Carter Confirms Trump Could Be Prosecuted for [A Lower Standard of] Obstruction
As you’ve no doubt heard, Judge David Carter issued an order releasing 91 documents from the days before and the day of the insurrection to the January 6 Committee. Chapman University professor John Eastman had attempted to withhold them from the 6 Committee under privilege claims. Judge Carter allowed Eastman to withhold just ten documents, most pertaining to then-ongoing lawsuits.
The headline finding from his opinion is that Judge Carter found it more likely than not that Trump committed the crime hundreds of other insurrectionists have been charged with — obstruction of an official proceeding — and Eastman and Trump (and others) entered into a conspiracy to do so.
On August 19, I laid out that if Trump were to be prosecuted, it would be for conspiring to obstruct the vote count. At the the time, TV lawyers ignored me, thinking they knew better. In December, after Liz Cheney argued that Trump had obstructed an official proceeding, those same TV lawyers started adopting the theory as if they had come up with it. Now a judge has agreed that it is likely that Trump did commit that crime that I laid out back in August.
Sometimes I hate to say I told the TV lawyers so. This is not one of those times.
Especially since, of the three kinds of overt acts that Carter cites to substantiate his decision, two — Trump’s pressure on Mike Pence and his mobilization of his mob to march on the Capitol — are Trump actions about which DOJ has been accumulating piles of evidence. In my opinion, by including the mobilization of the mob in his opinion, Carter showed a better understanding of Trump’s legal exposure than the Committee.
There are five elements Carter needed to establish to make his finding. First, to find Trump may have obstructed a vote count, Carter pointed to:
- Proof the vote certification was an official proceeding
- The actions Trump took to obstruct that official proceeding
- Proof of Trump’s corrupt intent
Then, to show that Trump and Eastman (and others) entered into a conspiracy to obstruct the vote count, he pointed to:
- An agreement to defraud the US
- Eastman’s own dishonest actions
Carter didn’t spend much time on the official proceeding prong. Instead he relied on the ten existing DC rulings on the issue finding the vote certification was an official proceeding cited in the committee brief (there are now at least 13 opinions finding it to be an official proceeding, though Carter did not address the issue on which Judge Carl Nichols had differed from his colleagues, whether obstruction required destroying of documents).
Carter pointed to three kinds of acts that amounted to Trump’s effort to obstruct the election: two meetings before January 6 where they discussed pressuring Pence, several appeals on the morning of January 6 to Pence (including on Twitter), and “galvanizing the crowed to join him in enacting the plan,” by walking to the Capitol.
President Trump facilitated two meetings in the days before January 6 that were explicitly tied to persuading Vice President Pence to disrupt the Joint Session of Congress. On January 4, President Trump and Dr. Eastman hosted a meeting in the Oval Office with Vice President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of Staff Marc Short.209 At that meeting, Dr. Eastman presented his plan to Vice President Pence, focusing on either rejecting electors or delaying the count.210 When Vice President Pence was unpersuaded, President Trump sent Dr. Eastman to review the plan in depth with the Vice President’s counsel on January 5.211 Vice President Pence’s counsel interpreted Dr. Eastman’s presentation as being on behalf of the President.212
On the morning of January 6, President Trump made several last-minute “revised appeal[s] to the Vice President” to pressure him into carrying out the plan.213 At 1:00 am, President Trump tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency . . . Mike can send it back!”214 At 8:17 am, President Trump tweeted: “All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”215 Shortly after, President Trump rang Vice President Pence and once again urged him “to make the call” and enact the plan.216 Just before the Joint Session of Congress began, President Trump gave a speech to a large crowd on the Ellipse in which he warned, “[a]nd Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you. I will tell you right now.”217 President Trump ended his speech by galvanizing the crowd to join him in enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and Congress “the kind of pride and boldness that they need to take back our country.”218
Together, these actions more likely than not constitute attempts to obstruct an official proceeding. [my emphasis]
It is public that DOJ has spent months focusing on the second (pressure on Pence) and third (mobilizing his mob) actions. Indeed, as I have shown, DOJ has laid out proof that many of the conspiracies had the specific goal of pressuring Pence.
To show that this met obstruction’s requirement of corrupt intent, Carter relied on a Ninth Circuit precedent that, for where he is in California, adopts a lower threshold for corrupt intent than the one adopted by the DC District judges so far.
The Ninth Circuit has not defined “corruptly” for purposes of this statute.222 However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,”223 meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c).
There is no such precedent in DC and, as I’ve argued, Judge Dabney Friedrich’s adopted standard is actually higher than this, finding corrupt intent in the commission of otherwise illegal actions. So Carter’s opinion, on top of meeting a lower standard than DOJ would need to charge, dodged two legal issues already before the DC District judges, whether obstruction required the destruction of evidence and whether it required otherwise illegal actions. It’s not clear that the actions that he lays out would, by themselves, meet Friedrich’s standard.
Carter pointed to two kinds of proof that Trump knew the plan to obstruct the vote count was wrong. He pointed to the 60 court losses as proof that their claims of voter fraud were false. He also pointed to Trump’s demand from Brad Raffensperger for exactly the number of votes he needed to win, which Carter presented as proof that Trump cared about winning, not voter fraud (As I have repeated over and over, this is one Trump action that is otherwise illegal).
President Trump and Dr. Eastman justified the plan with allegations of election fraud— but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent,224 the Select Committee points to numerous executive branch officials who publicly stated225 and privately stressed to President Trump226 that there was no evidence of fraud. By early January, more than sixty courts dismissed cases alleging fraud due to lack of standing or lack of evidence,227 noting that they made “strained legal arguments without merit and speculative accusations”228 and that “there is no evidence to support accusations of voter fraud.”229 President Trump’s repeated pleas230 for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”231 Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.
Carter then points to the two meetings (bolded above) as the moment when Eastman and Trump — and others — entered into a conspiracy to obstruct the vote count. Notably, this may put everyone else who was in that meeting on the hook for the conspiracy as well, members of an enormous conspiracy already charged against sixty people, including some seditionists.
He then pointed to Eastman’s awareness that his theories were bullshit and Pence’s repetitive insistence they were to find Eastman acted dishonestly.
The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo noted that the plan was “BOLD, Certainly.”232 The memo declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.”233 In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states.234
[snip]
The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.
So on top of getting some documents, this opinion lays out a framework that envisions Trump being charged for the same crimes that DOJ has been working towards charging him and others on for over a year.
In several ways, though (the standard of proof and two legal standards he adopted on obstruction), Carter has only found Trump may have obstructed the vote count at a much lower standard than DOJ would need.
The graf before the last blockquote seems to be missing its closing (“Eastman had the .”)
Like so many, I’m happy that this ruling came out.
TY.
There are many very smart people who contribute here. After revisiting some of my long ago statistics education to help a young friend with her required college stats course, I pondered Bayesian analysis for a bit. Also, the “more likely than not” legal metric is something that has always puzzled me as a past math person, so I found myself googling legal standard of proof and Bayesian analysis (in which one might calculate the probability that something happens given the belief that something else is true) and find there have been papers written on this (I don’t have time to read them during my 15 minute break at work, but will indulge later). Surely there is a legal mind on here who can explore this!
With regard to legal standards of proof (beyond reasonable doubt, preponderance, etc) I have always wondered if these conclusions can actually be taken to represent mathematical probability, or maybe the likelihood that a reasonable person might conclude the same, or just sort of intuitively reasonable.
Although not obviously legally binding, the intelligence community has long had conventions referred to as “words of estimators probability” that attempt to denote degrees of certainty. For example, per Sherman Kent, “probable” means “75%, plus or minus 12%.” I have seen other variants of this also.
https://www.cia.gov/static/0aae8f84700a256abf63f7aad73b0a7d/Words-of-Estimative-Probability.pdf
[Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you last commented as “arj.” Pick a name you prefer and stick with it. Thanks. /~Rayne]
Following up on Nord Dakota’s point, the opinion says things such as “Together, these actions more likely than not constitute attempts to obstruct an official proceeding” and uses wording such as “likely knew” and “likely acted.” That wording does not strike me to meet the standard of beyond a reasonable doubt. I assume that an order releasing documents doesn’t have to meet that standard, but it still seems to me, based on Judge Carter’s ruling alone, that providing evidence in a court of law and proving a case against Eastman or Trump is still a challenging task. What am I missing?
Zirc
This judgment and its associated language at center of this discussion are solely associated with ruling on “crime-fraud exception” of Eastman’s attorney-client privilege claim. Certain triggers must be met for the exception to apply, and Judge Carter was transparently and concisely detailing this in his opinion for the ruling.
It really has nothing to do with Trump or DoJ prosecuting (or not) Trump.
Eastman was subpoenaed. He then claimed some of the subpoenaed information was protected by attorney-client privilege. There is an exception to that privilege, and this is the Judge’s opinion to support his ruling: The judge agreed it probably may have been associated with a crime, and so the information is exempt from privilege. If it actually does turn out to be admissible evidence of a crime, then it can then be argued as such — and opposed as such — in prospective trial.
It’s inside baseball of discovery process to decide if the information can even be seen, which has a very low hurdle.
The judge ruled that yes, Eastman has to show it.
I believe the phrase “more likely than not” refers to the standard in civil cases of “preponderance of evidence,” meaning that one only needs 50% plus one to decide, as opposed to “beyond a reasonable doubt” required in criminal cases. But many lawyers here can speak to this question more definitively.
Can’t cite sources off the cuff, but I have read papers addressing the subject. The consensus seemed to be that “beyond a reasonable doubt” was roughly equivalent to “greater than 95% chance,” i.e., similar to the “p<.05" standard in the social sciences, while "clear and convincing evidence" hovered around a 75% threshold and "preponderance of the evidence" was, of course, above 50%. Instructing juries accordingly may actually enhance their decision-making.
Commentators here have remarked that prosecutors, in making decisions about whether to pursue a case, use a kind of threshold estimate of their likelihood of obtaining a conviction. If memory serves, it's around 85%. Basically that's close to the percentage they're expected to win, so they try to take on only cases that will boost their numbers.
Here's hoping for more refined responses from the sages.
“The consensus seemed to be that “beyond a reasonable doubt” was roughly equivalent to “greater than 95% chance,” …”
I don’t know about such a “consensus”. IME, 99.44% is often used as analogy to explain the concept out of court, but it is a mistrial for any lawyer to use such numbers before the jury, at least in my state (IL) and AFAIK in all states, and pretty sure in Fed court.
I’m “pretty sure”? Let’s say about this, 99.44%.
There’s been a lot written about applying what’s called a Bayesian odds ratio analysis to the legal problem of “more likely than not.” However, there’s a conceptual flaw at its core. The idea of the Bayesian odds ratio is that the finder of fact (= jury) has a “prior” notion of culpability, and then, after hearing and discussing all the evidence, it updates its “prior” to a “posterior” estimate of the probability the defendant is culpable.
So far so good. The trouble is that the jury, as a decision-making unit, does not exist until the evidence is in. Of course, each individual juror applies his or her prejudices and such to the defendant’s guilt, but the law everywhere in the English-speaking world expressly holds that the jury is forbidden to discuss the ongoing case in any way until the trial is over and the jury has officially begun its deliberations. This means that there cannot be a single decision-maker — essential for Bayesian analysis — until after all the evidence is in. As a matter of logic, there can be no “prior”, meaning the Bayesian jury has nothing to update. Even if you want to finesse this point, you have to ask yourself — at what point do the 8 or 10 or 12 members of the jury cohere into a single decision-making unit, and how do they amalgamate the views of all those individuals?
What??
Seriously, you think Bayes theory has anything in the world to do with jury deliberations? You ever been in/around a jury trial and/or on a jury? Really?
I interpreted what StuartEugene wrote here as making the point that Bayesian analysis is inapplicable to jury deliberations.
Well said. You could maybe look at many series of jury polls over time until verdict with event history analysis or a few other options if you wanted to violate constitutional rules — heck, phenomenological ones, too — for kicks of “knowing” something [this would require an omniscient/ God’s eye observer in the rooms and minds — for the whole duration, as people consolidate information while “off duty” (e.g. sleep), too; otherwise, omniscient and faithful reporters. Etc.].
I’d assume Bayesian tools would much more roundly apply to _the business_ of jury _selection_, and with mock juries testing trial strategy — where they are afforded / deployed. Even then, IRL you’d still have the social magic of whatever happens in any given group of people.
I may have misinterpreted what StuartEugene said. Not positive. Jury polls cracked me up though. It has a different meaning for trial lawyers. At the conclusion of a jury trial, the court standardly asks “would either counsel like to poll the jury”? Early on I was “hell yes, make them each say it out loud”. Was always a useless exercise.
Oh right I forget the different meaning of the phrase to trial-law professionals but it (as a post-verdict exercise) highlights the point that — for things like rough draft/ mid-deliberations jury votes — no one would or should be in the room to ask [etc. as in my other comment].
I thought StuartEugene made a succinct case for dispensing with the Bayesian BS in this context (while addressing Nord Dakota’s curiosity).
This is ultimately a philosophical question the depends on how one interprets the natural language meaning of probability. There are various schools of thought on this, and one might simplistically define the range as extending from “the limit of relative frequency” to “degrees of belief.” You might be interested to read the insightful and not very voluminous work of Frank Plumpton Ramsay arguing for the latter interpretation.
Does Judge Carter’s lower threshold for obstruction create a disconnect with the DC Circuit that would require a SCOTUS intervention? I really could see the RWNJs parachute in to ‘resolve’ this disconnect and block everything.
Carter wasn’t ruling on any standard of obstruction. It was narrowly limited to ruling on whether Eastman’s (attorney-client) privilege claim can be pierced by the crime-fraud exception during an investigation (subpoena).
Carter said in effect, “there seems to be a lot here that looks to be beyond normal legal advice and maybe those investigating the subpoenaed information should probably get to see it.”
Agree with everything in this article. But in practice, the differing standards of proof are typically less of a big deal than they sound like. In civil cases, you need to show things are “more likely than not,” and in criminal cases, you need to show things “beyond a reasonable doubt.” The shorthand way people think of that is that civil court you need to show a 51% chance and in criminal court you need to show more like 99%. Those sound like radically different standards.
But, in practice, the vast majority of times when there are both civil and criminal proceedings on the same matter, they resolve the same way. Most cases are more like either 0% or 100% in practice. E.g., there is a witness who says they saw the guy breaking into the liquor store. If the defense has some credible argument why that witness shouldn’t be believed, in the judge’s and jury’s minds, the case falls to 0%. If it doesn’t, the case jumps to 100% in their minds.
So, it’s true that the DOJ would have a tougher road than this, but probably more because the DOJ has to deal with two things this case did not- a jury that could include a Trump supporter, and a Supreme Court that is packed with Trump supporters.
As always, thanks for your sage (yet trollish) explanations of all things legal. Remarkable for someone with no apparent actual grounding in law. And, by the way, yes there are huge differences in the burdens of proof. So, you are peddling serious bunk. Don’t do that here.
What is the deal with you? Cut it out.
Anyways, I’m a lawyer.
Don’t tell me what to do, and quit hijacking our threads. I said you had no apparent grounding in law, not that you were not a lawyer. You have parachuted in, and seek to steer the legal discourse on this blog with cheap, and in the case regarding standards of proof, false platitudes.
I wouldn’t brag about that here if I were you. If you feel you need to scold/lecture one of our contributors/moderators, perhaps you need to check our community guidelines or find the exit.
It would be helpful if you added that to or linked to that from https://www.emptywheel.net/comment-policy/
Naw, they are fine.
Thanks but no. The folks who need the Community Guidelines have already proven they don’t give a flying rat’s butt about the published Comment Policy. Community Guidelines are a separate page and are a kind of last warning, without actually having to say, Here’s Your Last Warning.
If the behavior is too annoying and/or egregious and persistent, the boot meets the buns without further ado.
” But it was a dry boot”
(as in, “it was a dry cold”. Hey, 40 below is 40 bellow. )
LB
Agreed. Why not just do it?
You hide it well. Alberto Gonzales and many of his DoJ hires had the same problem.
“whether obstruction required the destruction of evidence and whether it required otherwise illegal actions.”
If destruction of data (like say a 7 hour gap in phone records that should have gone to the national archives) is a crime regardless of whether the data is evidence of another crime does that one act check both boxes here?
Great point, and it makes one wonder whether that same reasoning can be applied to CoS Meadow’s change of phones in the same time frame.
Destructo en Delecto as some might say…
“Notably, this may put everyone else who was in that meeting on the hook for the conspiracy as well, members of an enormous conspiracy already charged against sixty people, including some seditionists.”
I think this may be behind some of the recent scoops handed to the Washington Post and CBS, including the Ginni Thomas texts which had a major gap in them and now the 7 1/2 hour gap in the 1/6 White House call logs.
I think there may be signalling to actors that they should extrapolate from this how much information has already been gathered to fill those gaps, and the implications for considering them a part of a conspiracy.
The NY Times has an article out today which is basically a rehashing of what is already known, but suffers from the chronic problem of their DC bureau — they lack the reporting chops and suffer from editorial level pressures that block them from going beyond the most surface understanding of the evidence they have. It’s not hard to see why the 1/6 Committee doesn’t see much value in working with the Times.
Good point about the signaling. Ginni Thomas’s interview with Free Beacon comes to mind again, particularly with regard to her wording. Far too careful and specific, as if she was covering her ass with a friendly outlet’s help, but if read by other conspirators her language might say something more/else.
My insight (my snarky husband: “no shit, sherlock”): the edge of desperation in tfg’s words and transcripts is deafening.
Yeah and the new found telephone gap kind it makes it a sort of slam dunk at this point? What is consciousness of guilt for 200, Alex?
Nope, not necessarily. There are no such things as “slam dunks”. Could the “gap” be yet another piece of circumstantial evidence? Sure, maybe. But that is about it.
I agree slam dunk as far as this gap is a bad comparison. I think the best reading of the 1/6 Committee revealing that there is a big gap in the call logs (and in the Meadows-Thomas texts) is that DOJ and possibly the Committee know a lot about what is in those gaps.
I am sure there are dummies rushing to the conclusion that these gaps have just been uncovered and there will need to be a long process to dig out what’s there.
But I don’t think there is any reason to think the Post’s sources are exposing that they’re holding a bad hand. They’re raising the stakes.
So even if the Committee can’t get information on one side of a burner phone call, if the other party to the conversation was not on a burner phone the gist of the conversation may be reconstructed to the detriment of the party using the burner phone.
I just had a brief moment of glee thinking about them knowing who purportedly spoke to whom over which phones during that seven and a half hour period from about 11 a.m. to 7 p.m. on Jan 6.
Then I remembered that Russian state TV called for “regime change” today, “to help our partner Trump to become president.”
While it sounds prankish, Manafort did hand over a bunch of Republican voter date to Kilimnik. And the Russians did effect a major public and private Solar Winds data hack back in December 2020. So who knows what fresh hell is on its way in our upcoming elections from both inside and outside the house.
I may be underselling our surveillance state but I thought the only thing we could get from evidence of the other side of the call was evidence that it occurred (and its length). I guess if it was not a cash-bought burner but rather an aide’s borrowed phone that would be additional info. Getting that person to speak (at all) or testify (under oath) about the general (or specific) content is a whole other process though. How do conversations that are not through phone services but rather apps (whatsapp, discord, fb messenger, google meet…) get logged, or do they?
Not only that.
One might imagine that if the Committee (or DOJ) has reason to believe that a communication that might be applicable to an aspect of the investigation has taken place that it would permit the issuing of more subpoena’s to get that information from the other end of the communication. Apparently, a lot of those warrants have already gone out. And there seems to be more subpoenas in the works, given that there is now a blank log from the White House that is unexplained, etc.
Testimony and commnunications about utilizing the Normies admits somebody knew that mobilizing / directing normies was part of the plan and lower end flunkies acting in coordination with the larger plan is a lower ended component of the conspiracy. Trump’s speech and the normie mobilizations were all planned parts of the overall act and intention of delaying the proceedings.
Trump’s complicity began weeks before J6.
Can you imagine Trump’s face when first he heard about the Green Bay Sweep? He thought , YES, I’ll get the Vince Lombardi Trophy, AND, I’ll get the presidency back. This is great. Who’se in charge of blowing shit up ?
No way he stayed away from setting up the chessboard of that day’s event, especially with the promise of violence and rage in Trump’s prior promotion and then his speech.
He does not have to know what the other parties to the conspircy were doing, just really hard to imagine he didn’t know everything , from the tent, the Senate, and the Willard. As you have said elswhere
Dr. Wheeler – “a case that can be made against Trump
WITHOUT the testimony of his allies.” Bring it. Phenmonel work you do. Let’s all get in the habit of just saying Doctor Wheeler was right all along. All these moths the DOJ has been doing the opposite of setting yourself up to fail.
Ah, the unforgettable words of Judge Brann (MDPA).
Others include “Frankenstein’s Monster” as to The Campaign’s claims.
Rudy on their behalf _then_ sought the “remedy” of having the Pennsylvania legislature choose the electors — in re the long threads of the mass-disenfranchisement / coup scam.
Plot to Overturn the Election
FRONTLINE and ProPublica examine how lies about election fraud in 2020 have made their way to the center of American politics and how a handful of people have had an outsized impact on the current crisis of democratic legitimacy in the United States.
https://www.pbs.org/video/plot-to-overturn-the-election-f82grp/
Or view on You Tube.
https://www.youtube.com/watch?v=90O-q7dgS-I