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How the Jan. 6 Panel Could Make It Harder to Prosecute Donald Trump


By presenting damning evidence in court last week that former President Donald Trump was indeed deceiving the United States, the Jan. 6 Committee made a huge bet — with a potentially disastrous upside.

A federal judge in California will soon decide if there is enough evidence that Trump likely engaged in a criminal scheme to stay in power with the help of his attorney, John Eastman. If he does, then the House Select Committee that is investigating the January 6 uprising will have an attempt to get Eastman’s potentially harmful emails — along with criminal evidence against him. Trump himself.

But first, it will come to a relatively dull procedural court ruling, in which U.S. Judge David O. Carter must decide if there is enough doubt to overcome the usual secrecy contained in the secrecy. attorney-client relationship or not.

Don’t expect any handcuffs yet.

“We are far from a criminal complaint,” said Jessica A. Levinson, a law school professor at Loyola Marymount University. However, she added, “But again, it’s the strongest link we’ve seen between … Trump’s behavior in relation to the 2020 election and criminality.”

In short, she said, “it’s a big deal.”

If the judge concludes there is a possibility of fraud, his ruling will make harsh headlines supported by the authority of a judge with 23 years on the bench (and a bulletproof background as a judge). as a prosecutor and a doctor in the Vietnamese marines.) And with that, there will be increased political pressure on the Justice Department to finally investigate the former president and take decisive action — and history — against him.

“The emails we’ve seen have been very obnoxious,” said Douglas M. Spencer, associate professor of law at the University of Colorado. “There will be a conclusion on criminal fraud accepted by a judge that will color people’s views on what happened on January 6th.”

However, there is a flip side to this question.

If the judge ruled that those emails could be kept secret, it would cast a shadow of doubt on the congressional panel’s attempt to hold Trump accountable. And it could actually make it harder for the FBI and Justice Department to track down the former president, according to current and former prosecutors who spoke to The Daily Beast.

Any attempt to obtain a search warrant for Trump would have to note that another judge somewhere ruled on this and found nothing.

And when it comes to the Biden-era Justice Department, Trump may well have nothing to worry about — at least that’s what his lawyers are telling him.

Since last year, according to a source familiar with the matter and another briefed on the situation, when Trump privately asked people what they thought Attorney General Merrick Garland might have for him. Trump’s lawyers and advisers have repeatedly reassured the former president that Garland is incapable of criminally pursuing Trump.

Some lawyers have sought to assuage the former president’s concerns by telling him they believe Garland is an institutionalist who is, among other things, risk-averse in setting a precedent. could easily happen — for better or worse — against Democratic presidents. .

During these conversations, sources said, Trump would sometimes agree with associates who said Garland was likely unprepared to open that box of worms. However, the former president likes to say that if the Biden administration to be To follow that path, Trump’s followers are so dedicated, they will take to the streets in mass protests and relentless confrontations with Democratic officials and politicians who have “done it with Trump.” .

This bewildering sentiment – ​​coming from the man who largely instigated the deadly attack on the Capitol last year – is something Trump foresaw at rallies after his presidency.

“If these radical, cruel, racist prosecutors do anything wrong or illegal, I hope we will have in this country the biggest protest we have ever had. in Washington, DC, in New York, in Atlanta, and elsewhere, because our country and our elections are corrupt,” Trump said at a rally in Texas in late January, as he continues to spread his anti-democratic lies about Biden’s decisive victory in the 2020 presidential race.

“At the end of the day, he gave a speech and if the 6th of January committee wants to accuse him of inciting riots, that is an extremely difficult case to make under any circumstances, because so I’m not surprised that Trump’s attorneys are telling him that,” Steven Groves, who worked as an attorney and later as Trump’s White House spokesman, said on Sunday. “There are very specific precedents about instigating and whether a speech meets those elements.”

The January 6 committee’s inability to file criminal charges on its own — and its reliance on the DOJ to do so — is one reason why legal scholars are beginning to suspect that Trump would actually relinquish its role in inciting the uprising.

Prosecutors are likely to insist on written evidence that shows Trump knows his actions were illegal but is faking nonetheless — a high and unlikely threshold for the way Trump operates. communicate with lieutenants through mockery and allusion, and avoid email at all costs.

“We say that no one is above the law, but in reality, the president is above the law. Once 80 million people say they support you being their political leader, that will provide some protection against legal action, because it will always raise questions about a political prosecution,” Spencer, a University of Colorado law professor, told The Daily Beast.

But, as expected, the minions could still be burned.

“It is likely that John Eastman will be criminally charged and disqualified, and others around his orbit will suffer the consequences,” added Spencer.

The evidence presented by the 6 January Commission last week was thorough and far-reaching.

In a legal memo backed by sworn letters and emails, congressional investigators made a compelling case that Trump personally engaged in a criminal conspiracy to deceive the very nation he leads and then impede the formal process of Congress. It explains in detail how Trump spread lies about election fraud, even as the highest-ranking DOJ officials repeatedly informed him that his assertions were false. And it describes how Trump conspired to prevent Congress from certifying the votes that Joe Biden beat him at the polls.

Even Eastman’s legal team recognized the committee’s remarkable legal memo on what it was. In court documents on Friday, the team described the committee’s memo as “an effective draft criminal indictment against former President Trump and numerous alleged accomplices named and anonymous”.

Much of the evidence released Friday sheds more light on just how aggressive Trump was in his fraudulent campaign.

Sworn excerpts from the impeachment show that Richard Donoghue, who served as deputy attorney general and was interviewed by the committee behind closed doors, recounted how Trump tried to manipulate the DOJ to promote an election conspiracy his.

“I have personally told the President that several times, in several conversations, that these allegations about ballots being smuggled in suitcases and running through the machine multiple times, it is true, that we reviewed it, we watched the video. , we interviewed witnesses, and that’s not true,” he said, according to his October 2021 testimony transcript.

“But he wanted us to say it was broken,” Donoghue continued. “And this is consistent with some of what he has said at other points, the Department should openly say that the election is corrupt or questionable or unreliable. At one point he mentioned the possibility of holding a press conference. We told him we wouldn’t do it.”

Donoghue told Trump that the supposed 68% error rate on the Michigan ballots is actually a 0.0063% error rate, less than 1 in 15,000. The disappearing briefcase crammed with Trump ballot papers in Georgia isn’t really a briefcase and it never does — and the video proves it. The truck driver thinks a truckload of ballots being shipped from New York to Pennsylvania isn’t real — and federal agents know it, because they’ve interviewed the people who loaded it. truck and unloading more than 100 miles away.

The President insisted anyway.

Jason Miller, a former Trump spokesman, told the committee that the president had been made clear by his own campaign data adviser that he was bound to lose at a meeting with son-in-law Jared Kushner, campaign director Bill Stepien and attorney Justin. Clark. However, Trump refuses to believe the candid assessment from Matt Oczkowski, a former top employee at the notorious Cambridge Analytica who went on to support Trump in the 2020 election.

And while the facts clearly show that Trump’s days in the White House are numbered, Trump continues to pressure Vice President Mike Pence to repeal the U.S. Constitution and unilaterally refuse to vote. votes in the important states until the end.

Pence’s national security adviser, retired US Army Lieutenant General Keith Kellogg Jr., recalled a conference call on the morning of January 6 in which Trump insisted Pence “has the legal authority to send these people back to their respective states.” Pence’s chief of staff, Marc Short, also confirmed the details of that call with the committee. And the secret White House schedule for that day, also obtained by the committee, reflects that Trump had “cw/VPOTUS” at 11:20 a.m.

At the time, the Trump administration had only told the public — as it often did near the end of his term — that “President Trump will work from early morning until late at night. He will be making a lot of calls and having a lot of meetings.”

The committee hopes that a federal judge will give them access to emails that will provide key details about what Eastman advised Trump during his tumultuous final days in office and possibly even clues. about whether Trump fully acknowledges that what he is doing is morally and utterly reprehensible. illegal.

After that, it’s a race to gather evidence ahead of the commission’s planned public hearing in the spring.

“The committee will still have to do its job then vote on the recommendation of the crime and then of course the Department of Justice will make its own assessment,” Levinson, the legal scholar, told The Daily Beast.

But it is one thing to raise suspicions of fraud, and another to prove actual fraud in criminal court. Judge Carter made that clear on Friday, when he stressed the importance of any interference from the DOJ — and the added difficulty of charging anyone.

“Dr. Eastman’s freedom isn’t the issue – just his emails,” he wrote. “The Legislature brings criminal charges in the context of limited privilege; but it is the law enforcement agency that is responsible for deciding whether to prosecute or not. To put Dr Eastman at risk of jail time, entirely separate criminal proceedings would be required, where the government would face a significantly higher burden of proof and Dr. Full protection of criminal law. “



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