FILE - President Donald Trump arrives at the White House in Washington, on Dec. 31, 2020. Mark Pomerantz, a prosecutor who had been leading a criminal investigation into Donald Trump before quitting last month, said in his resignation letter that he believes the former president is "guilty of numerous felony violations" and he disagreed with the Manhattan district attorney's decision not to seek an indictment. (AP Photo/Evan Vucci, File)
Reporter: Why judge's comment about Trump is a big deal
01:10 - Source: CNN

Editor’s Note: Norman Eisen was former President Barack Obama’s “ethics czar” from 2009 to 2011 and US ambassador to the Czech Republic from 2011 to 2014. Fred Wertheimer is president of Democracy 21, a nonpartisan, non-profit organization that works to strengthen US democracy. The views expressed in this commentary are their own. Read more opinion articles on CNN.

CNN  — 

The resignation of two Manhattan prosecutors for their boss’s failure to charge former President Donald Trump over potential financial crimes last month has reignited debate over whether he will ever be held accountable for his alleged misdeeds.

That matters not only looking back but also going forward because perhaps his most notorious outrage – the big lie that he won the 2020 presidential election – has not halted. It continues to drive hundreds of voter suppression and election sabotage bills and anti-democratic candidates across the country. And it has captured and corrupted a significant faction of the Republican Party.

Norman Eisen
Fred Wertheimer

Thankfully, Judge David Carter’s decision on Monday, finding Trump “more likely than not” committed crimes, sets out a road map for finally imposing consequences for the big lie. It does so by tackling the thorniest legal issues regarding Trump, his enablers and the events in and around January 6, 2021 – and showing how they can be addressed by prosecutors.

Perhaps the most daunting of these is the question of Trump’s criminal intent. How can a prosecutor prove what Trump was thinking when he publicly claims good faith but refuses to testify, when those closest to him also resist or are hostile witnesses and when he does not use the prosecutor’s best friend, email?

Intent is where the Manhattan District Attorney’s financial case seemed to come a cropper. Whatever you think of the DA’s failure to prosecute financial crime, and we strongly disagreed, Carter offered a powerful array of evidence about democracy crimes.

Carter applies precedent to show that “a person does not need to know their actions are wrong to break the law.” Trump exceeded this threshold because he likely knew that right-wing lawyer John Eastman’s plan to throw out electoral votes was illegal. Carter cites the January 6 House select committee’s carefully compiled evidence that Trump was advised publicly and privately numerous times that there was absolutely no evidence of significant electoral fraud.

As the opinion notes, Trump’s calls to Georgia Secretary of State Brad Raffensperger in which he famously asked the secretary to “give (him) a break” and “find 11,780 votes” (one vote more than Biden’s margin of victory in that state) reveal the former President’s goal: not to undertake any legitimate investigation, but simply to overturn the election. This is strong evidence of a “corrupt mindset,” and it leads Carter to an eminently simple conclusion: “(t)he illegality of the plan was obvious.”

By marshaling both private conversations and public writings about the plan to overturn the election’s lack of evidentiary basis, Carter shows that prosecutors have at their disposal a wide array of forms of evidence probative of the former President’s intent. Perhaps no one on earth has developed a lengthier evidentiary record than Trump – and prosecutors can unlock that record to hold him accountable. This effectively contradicts those who say intent will be hard to prove and is a useful signpost for the upcoming January 6 committee hearings and report – and for when the Justice Department receives the committee’s full evidence and any criminal referrals.

The judge’s analysis does not stop only at tackling the knotty issue of intent. He goes on to tackle the charge of obstruction of an official proceeding in Congress. This can be hard to prove (having worked on this issue during Trump’s first impeachment, one of us knows this particularly well). But the judge’s opinion shows the way.

Carter joins other federal judges in ruling that the congressional electoral count is an “official proceeding,” and he rules that Trump likely attempted to obstruct or impede that official proceeding under Title 18 Section 1512 of the US Code. By synthesizing evidence from Twitter, the President’s private schedule, remarks at the Ellipse rally and other sources, Carter traces Eastman and Trump’s activity in the days leading up to January 6 and finds that these actions “more likely than not” constitute obstruction.

The judge also mapped another important possible crime: conspiracy to defraud the US under Title 18 Section 371. He did so as to Eastman and Trump, but in terms that by implication could apply broadly to many others in their circle. Here, the opinion notes that “(l)eading small meetings in the heart of the White House implies an agreement between the President and Dr. Eastman and a shared goal of advancing the electoral count plan.”

The possible implications for the rest of Trump’s enablers are obvious. Eastman is certainly not the only person alleged to have participated in calls or meetings relating to overturning the election. Tremors must have gone down the spines of former Trump lawyers Rudy Giuliani and Sidney Powell, former White House chief of staff Mark Meadows, former Justice Department official Jeffrey Clark and many more who were allegedly part of such conversations.

It is also worth noting that the judge ultimately ordered disclosure of only one document based on the “crime-fraud” exception to attorney-client privilege. That one document, however, is significant. It is an email chain that forwarded to Eastman a draft memo written for Giuliani. Carter notes that “this may have been the first time members of President Trump’s team transformed a legal interpretation … into a day-by-day plan of action.” By recognizing that Eastman’s theories weren’t just legal musings but the action plan for “a coup in search of a legal theory,” Carter knocks down one of the key phony arguments on which Eastman and Trump have relied.

This is obviously helpful to the committee in framing their hearings around this illicit conduct and in including strong criminal referrals to the Justice Department in its report. Because there is likely more evidence than what has already been disclosed, the committee should build on the judge’s opinion, and then it is for the Justice Department to evaluate and determine whether the cases can be proved beyond a reasonable doubt.

In addition, neither we nor the committee should neglect the importance of all this to state prosecutors like Fulton County District Attorney Fani Willis in Georgia, who is investigating Trump’s alleged efforts to overturn the election in that state. She must grapple with these issues of proving criminal intent, conspiracy and the like under Georgia law. And Willis has added a Georgia Racketeer Influenced and Corrupt Organizations Act (RICO) expert to her team to advise in her investigation. The judge has made all that easier for her, and the committee should also keep her investigation in mind as they build on his work in their hearings and in their report. (They are reportedly already talking to her office, which is a promising sign.)

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    Of course, some caveats do apply. The California federal case was a civil proceeding, and so involved a lower standard of proof than the beyond-a-reasonable-doubt standard that will apply in a federal or state criminal case. Moreover, Eastman will undoubtedly appeal, which might delay matters. But his efforts are unlikely to be successful owing to the judge’s very searching review of the record.

    Indeed, there is only one part of his opinion to which we take exception. At the close, Carter writes that “(m)ore than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it.” That is false modesty.

    He might have said, “cannot directly provide it.” Carter knows the limited implications of his decision. But he has expertly tackled the key legal issues that the public needs to understand, and that will need to be addressed by the January 6 committee in making any criminal referrals and ultimately by federal and state prosecutors in their own efforts to hold Trump accountable.

    Hopefully, all will use the road map the judge has provided and do something about the underlying offenses. That matters for the sake of holding Trump and his enablers accountable, for stopping the ongoing big lie crime spree of the MAGA faction of the GOP and for protecting our democracy itself.