Jan. 6 panel has tough case to make on Trump criminal conspiracy

The House committee investigating the Jan. 6 attack on the Capitol laid out a weighty claim this week: that former President Trump engaged in a criminal conspiracy in his effort to unwind the 2020 election. But experts say that the panel has more work to do in order to convince federal prosecutors of the case against him. 

The select committee has been signaling for months its interest in investigating whether the former president committed a crime, suggesting that it could go so far as sending a criminal referral to federal prosecutors, depending on the evidence it uncovers.

The filing this week marked a significant escalation in that effort, as the panel seeks to convince a federal judge that it should be allowed to obtain Trump campaign attorney John Eastman’s communications with the president and others. There’s little precedent for a congressional committee leveling accusations of criminal wrongdoing against a president in court.

It was something attorneys for Eastman himself noted in their responding brief: “Were this court to sustain the defendants’ claims, it may be the first formal finding of Presidential criminality by a federal court in United States history.”

But the select committee’s arguments this week were not aimed at convincing prosecutors to bring charges against Trump, which will require investigators to clear a burden of proof much weightier than the legal question in the Eastman case.

Rep. Adam Kinzinger (Ill.), one of two Republicans on the select committee, emphasized that the panel's mandate is simply to investigate the events surrounding the attack, not prosecute any related crimes.

“We're not out here for criminal charges. Our [responsibility] is just to get the bottom of it,” he told reporters Thursday outside the Capitol.

“In terms of getting the documents we need, a judge asked if the crime-fraud exemption existed, which would take away attorney-client privilege. We believe it does,” he continued. “In terms of anything beyond that [from] a criminal perspective, that's up to DOJ [the Department of Justice], it’s not up to us.”

The filing lays out what the committee believes to be a good-faith basis that Trump and Eastman committed multiple crimes in seeking to convince then-Vice President Pence to obstruct Congress’s certification of the Electoral College votes. That basis, the panel argues, undermines Eastman’s insistence that the requested records are protected by attorney-client privilege, which does not cover a lawyer’s role in facilitating illegal activity.

The select committee is asking a federal judge to review the documents himself, confidentially, to assess whether they fall under the crime-fraud exception to the otherwise broad privilege afforded to attorneys.

Christopher Macchiaroli, a former federal prosecutor, says that the legal standard the select committee is seeking to meet in the Eastman case is much lower than the one imposed on Justice Department lawyers trying to build a criminal case.

“It's a different analysis between an investigatory entity and a criminal prosecutorial entity,” Macchiaroli said, comparing the committee’s effort to show “a good-faith basis versus the high standard that DOJ requires for bringing criminal cases, especially of a president.”

The case has led the committee to lay out evidence it has collected against Trump — the clearest sign yet of what information might be included in its final report. It argues that Eastman and Trump pushed Pence to obstruct the election certification despite forceful objections from White House lawyers that there was no legal basis to do so.

And while the select committee isn’t quite prepared to lay out the case for prosecuting Trump, some legal experts believe that the lawmakers may very well succeed in obtaining Eastman’s records by poking holes in his claims that they are protected by the attorney-client privilege.

Macchiaroli says that the committee laid out strong evidence that Eastman tried to charge ahead with the effort to overturn the election despite reasoned legal advice from other lawyers urging against it, noting that that any lawyer, especially one advising the president, has a duty to be cautious and frank in counseling what the law does and does not permit. 

“To me that is not consistent with what we're seeing in some of the communications that the Jan. 6 committee has unearthed,” he said. 

“So basically, you're getting feedback that there's no factual basis for your position, there's no legal basis for your position and the belief of people that there is no legal basis for your position is so strong that they are unwilling to follow the chain of command and potentially willing to resign. At that point, any prudent lawyer would say, 'You know what, maybe I didn't get it correct. Maybe I need to reevaluate my position.' ”

But John B. Harris, an attorney with the law firm Frankfurt Kurnit, said the same details could falter in a larger case against Trump, as DOJ would need to show he had intent to defraud as he carried out his plans.

“Here I think the problem is that if Trump's defense may be that he truly, truly believed these measures might be justifiable and decided to believe one set of advisers or another. The Government can bang on the table a lot say, ‘Well, you had more — and more credible — advisers on the side that said you need to stop this.’ And you had advisers using very strong language that it's illegal and unsupportable,” he said. 

“But if he had his own mindset that something terrible happened here … that creates a bit of a swamp and some murkiness that the government will have to deal with at a trial to prove beyond a reasonable doubt that Trump did this knowing that it was all a sham.”

While the filing may not have been the road map to a Trump prosecution, it could be the beginning of a public effort to pressure the Justice Department into seriously scrutinizing what role the former president may have played in fomenting the attack on the Capitol and whether he engaged in criminal conduct in the process.

It’s unclear whether there will be any criminal charges against Trump, but Jeff Robbins, an attorney who has served both as a federal prosecutor and a congressional investigative counsel, says that the DOJ would certainly feel the pressure if the select committee continues to build a public case for why he should be indicted.

“The whole world is watching their work,” Robbins said. “They know that the statements that they make are going to be judged and scrutinized. That they were prepared to make the statements they've made is of course a statement to the Department of Justice that the theme of criminality on a part of the former president and the evidence of potential criminality by the former president is going to take a meaningful role on stage.”

The filing this week also served to underline implications that Eastman’s lawsuit could have for both the DOJ and select committee investigations.

The panel’s claims about the crime-fraud exception are just part of a list of reasons why it believes the lawyer’s communications are not covered by the privilege. The judge in the case could rule on the privilege question one way or the other without even touching on the issue of criminality.

But if the judge decides to address the crime-fraud exception, legal experts say a win for the committee would be a major development requiring the DOJ to take notice. If Eastman succeeds, it could stymie investigators’ efforts to obtain records from some of Trump’s advisers.

Harris, who has studied the legal issues around the attorney-client privilege, says that the question of whether the exception applies is not clear-cut.

“To me, the tricky part of this is that Eastman apparently believed that as an academic theory what he was proposing about Pence or the electors was plausible. If that was something that he believed was a fair extension or interpretation of the law, that gives him some protection. It wouldn't automatically be a crime or fraud for him to propound an academic theory even if he believed that it was certain to lose,” Eastman said.

But there are signs in Eastman’s conversations with Pence’s legal team that he was aware part of the plan would require an illegal act by the vice president.

“At another point he argues that what Pence would be doing was a ‘minor violation’ of the law. That argument suggests he recognized that the issue was one of magnitude … that it was illegal, but not that much. That helps the committee get there on crime-fraud exception since Eastman seems to be knowingly urging Pence to break the law at least to some degree.”

Mike Lillis contributed.