Here Is Why a Federal Judge Says Trump Probably Committed Felonies When He Tried to Overturn Biden’s Election

“Donald Trump and one of his legal advisers, former Chapman University law professor John Eastman, probably committed federal felonies when they conspired to reverse the outcome of the 2020 presidential election by pressuring then–Vice President Mike Pence to block or delay congressional ratification of Joe Biden’s victory. U.S. District Judge David O. Carter concluded it was “more likely than not” that the scheme violated 18 USC 1512, which prohibits obstruction of “any official proceeding,” and 18 USC 371, which criminalizes conspiracies to “defraud the United States.”
Carter made that determination while adjudicating a dispute over emails sought by the House select committee investigating the January 6, 2021, riot at the U.S. Capitol by Trump supporters who accepted his stolen-election fantasy and were angry at Pence for refusing to go along with Eastman’s plan. While the practical impact of Carter’s conclusion is limited to just one disputed document, his analysis amounts to an indictment of conduct that was not just dishonest and reckless but arguably criminal.

“The illegality of the plan was obvious,” Carter writes. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated, ‘no Vice President in American history has ever asserted such authority.’ Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed….President Trump knowingly tried to subvert this fundamental principle.”

Eastman argued that 111 of the documents sought by the January 6 committee’s subpoena were protected either by attorney-client privilege, which applies to confidential legal advice, or by the “work product” doctrine, which applies to material prepared in anticipation of litigation. The select committee argued that the disputed emails were not protected, invoking the “crime-fraud exception,” which applies to legal advice “in furtherance of” a crime.

Carter concluded that 13 documents qualified as work product and that the crime-fraud exception applied to just one: a memo prepared for Trump attorney Rudy Giuliani recommending that Pence “reject electors from contested states on January 6.” Carter says that memo “may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action.”

As Carter notes, that plan of action was blatantly illegal. In conversations with Greg Jacob, Pence’s counsel, Eastman conceded that the plan violated the Electoral Count Act in several ways. And while Eastman questioned the constitutionality of that law, Carter says, the proper way to resolve those claims would have been to raise them in court rather than unilaterally choosing to ignore the statute.

Eastman likewise acknowledged that it was “100 percent consistent historical practice since the time of the Founding” that the vice president does not have the legal power to do what Eastman and Trump wanted him to do. Eastman also admitted that it was likely the Supreme Court would unanimously agree.

On January 3, 2021, Eastman nevertheless wrote a six-page memo calling for “BOLD” action by Pence to stop Biden from taking office. “The stakes could not be higher,” he wrote. “This Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”

The next day, Eastman, at Trump’s behest, pushed his plan in a meeting with Pence, Jacob, and Marc Short, the vice president’s chief of staff. “During that meeting,” Carter notes, “Vice President Pence consistently held that he did not possess the authority to carry out Dr. Eastman’s proposal.” Eastman met again with Jacob and Short on January 5, saying, “I’m here asking you to reject the electors.” Most of that meeting was consumed by an argument in which Jacob disputed the legal merits of Eastman’s memo.

“Despite receiving pushback,” Carter says, “President Trump and Dr. Eastman continued to urge Vice President Pence to carry out the plan.” At 1 a.m. on January 6, Trump tweeted that “if Vice President @Mike_Pence comes through for us, we will win the Presidency,” averring that “Mike can send it back!” Seven hours later, another Trump tweet insisted that “states want to correct their votes,” saying “all Mike Pence has to do is send them back to the States, AND WE WIN.” He urged Pence to “do it,” because “this is a time for extreme courage!”

Trump delivered the same message in a phone call to Pence around 11:20 a.m. that day. According to Pence’s national security adviser, who was present during that conversation, Trump castigated the vice president as “not tough enough to make the call.” Trump and Eastman reprised the same theme during their speeches at the “Stop the Steal” rally that preceded the Capitol riot. Trump closed his speech by urging his followers to march on the Capitol in the hope of inspiring “the kind of pride and boldness” that “weak” Republicans like Pence needed “to take back our country.”

Around noon, Pence publicly rejected Trump and Eastman’s appeals, saying, “It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.” After the riot started, Trump condemned Pence on Twitter: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

In an email to Eastman while Trump’s enraged supporters were storming the Capitol, Jacob noted that the rioters “believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day,” and “thanks to your bullshit, we are now under siege.” Eastman, who was still trying to change Pence’s mind, took a different view: “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.”

A conviction for obstructing or attempting to obstruct an official proceeding requires proving that the defendant acted “corruptly.” According to 9th Circuit precedent, that element does not require “consciousness of wrongdoing.” But in this case, Carter says, Trump “likely knew that the plan to disrupt the electoral count was wrongful.””

“Carter’s conclusions do not necessarily mean that Trump or Eastman could be successfully prosecuted for either of these crimes. The preponderance-of-the-evidence standard for applying the crime-fraud exception is much less demanding than the proof beyond a reasonable doubt required for a criminal conviction. So even if the January 6 committee ends up recommending criminal charges, the Justice Department might sensibly decline to pursue them. But Carter’s ruling, which calls Eastman’s plan “a coup in search of a legal theory,” reminds us of how outrageous and unprecedented Trump’s reaction to his electoral defeat was.”

The January 6 committee is seemingly moving toward recommending charges for Trump

“The House committee investigating the January 6, 2021, attack seems to be building toward a conclusion that former President Donald Trump broke the law, and developments in recent days have intensified questions about his potential criminal exposure.

On Tuesday, the Washington Post reported that White House records of Trump’s calls on the day of the attack, which had been turned over to the January 6 committee, had a gap of seven hours and 37 minutes in which no calls were listed. Speculation abounded from investigators and commentators that Trump used unofficial “burner phones” on that day to avoid leaving a paper trail with the federal government records. (Trump denied knowing what a burner phone is.)

Meanwhile, earlier in the week, a federal judge took stock of the January 6 committee’s argument that Trump had committed crimes connected to that day’s events — and found them persuasive. As part of a ruling in a civil lawsuit over whether Trump’s lawyer had to turn over some records to the committee, the judge wrote that Trump “more likely than not” committed both obstruction and conspiracy as he tried to impede Congress’s count of the electoral votes, and harshly condemned his actions. This is just one judge’s opinion, but it was a vote of confidence in the case the committee seems to be building.”

“Given that there are multiple reports about Trump making or receiving calls during this time span, it seems obvious the official records are incomplete. Trump may have used his aides’ phones to speak to others. But Woodward and Costa also report that the committee is investigating whether Trump deliberately used cheap “burner phones” that could be used temporarily and then disposed of, therefore avoiding an easily documentable paper trail.

Trump responded with a statement claiming he had “no idea what a burner phone is, to the best of my knowledge I have never even heard the term.”

But former national security adviser John Bolton told Costa he had heard Trump use the term “burner phones” several times and that Trump fully understood what they were used for. And Hunter Walker wrote for Rolling Stone back in November that some organizers of the pro-Trump rally in Washington, DC, on January 6 had obtained burner phones to contact Trump’s team and even members of the Trump family.”

Call it authoritarianism

“Blocking an inquiry into the January 6 attack on the Capitol, embracing Trump’s “Big Lie” that the election was stolen, making it easier for partisans to tamper with the process of counting votes: These are not the actions of a party committed to the basic idea of open, representative government.

It’s common to call this GOP behavior “anti-democratic,” but the description can only go so far. It tells us what they’re moving America away from, but not where they want to take it. The term “minority rule” is closer, but euphemistic; it puts the Republican actions in the same category as a Supreme Court ruling, countermajoritarian moves inside a democratic framework rather than something fundamentally opposed to it.

It’s worth being clear about this: The GOP has become an authoritarian party pushing an authoritarian policy agenda.”

“When people think of authoritarian governments, they typically think of police states and 20th-century totalitarianism. But “authoritarianism” is actually a broad term, encompassing very different governments united mostly by the fact that they do not transfer power through free and fair elections.”

“competitive authoritarian systems survive in part by convincing citizens that they are living in a democracy. That’s how they maintain their legitimacy and prevent popular uprisings. As such, they do not conduct the kind of obvious sham elections held in places like Bashar al-Assad’s Syria (he won the 2021 contest with 95 percent of the “vote”).

In competitive authoritarianism, the opposition does have some ability to win a bit of power through, well, competition — even if the scope of their possible victories are limited.

It’s a tricky balance for the regime to pull off: rigging elections enough to maintain power indefinitely while still permitting enough democracy that citizens don’t rise up in outrage. Many competitive authoritarian regimes have collapsed under the stress, either transitioning to democracy (like Taiwan) or forcefully repressing the opposition and becoming a more traditional autocracy (like Belarus).”

“Happily, the United States still passes the most basic test of whether a system is democratic: whether the public can vote out its leaders. But it is hard to deny that the Republican Party has begun chipping away at that baseline principle, using the flaws in our political system to entrench their power.”

Birx rightly said most US Covid-19 deaths were preventable. But she won’t acknowledge her complicity.

““I look at it this way: The first time, we have an excuse. There were about 100,000 deaths that came from that original surge,” Birx told CNN chief medical correspondent Sanjay Gupta. “All of the rest of them, in my mind, could have been mitigated or decreased substantially.”

In sum, Birx suggested that thousands of American deaths were all but unavoidable as a result of the initial surge of the coronavirus in February and March of last year. But she said better adherence to public health guidelines — including mask-wearing and social distancing — could’ve saved the lives of many of the 450,000 people (and counting) in the US who have died since then.”

“While Birx’s suggestion that as many as 100,000 deaths were too difficult to prevent is arguable — a better-prepared federal government could have limited spread and saved lives by building out a testing infrastructure much more quickly than the one overseen by Trump”

Trump’s withdrawal of US troops from Somalia, briefly explained

“The Trump administration will pull virtually all of the US’s roughly 700 troops in Somalia out of the country just five days before President-elect Joe Biden takes office.
The withdrawal, announced Friday by the Pentagon, ostensibly marks the latest attempt by President Donald Trump to scale back US presence overseas in what he’s described as costly and ineffective military operations across regions like the Middle East.

Acting defense secretary Christopher Miller announced in November that the US plans to reduce US troops from 4,500 to 2,500 in Afghanistan and from 3,000 to 2,500 in Iraq. But the strategy shift in Somalia appears to be something different.

Rather than a case of troops being brought home, many of the forces will be repositioned to neighboring Kenya, according to a Defense Department official, although it’s unclear so far what percentage of the Somali-based troops will be restationed there.

“As a result of this decision, some forces may be reassigned outside of East Africa,” the Pentagon said in a statement on Friday. “However, the remaining forces will be repositioned from Somalia into neighboring countries in order to allow cross-border operations by both US and partner forces.””

“The US forces stationed in Somalia were largely tasked with counterterrorism missions, with a particular focus on fighting the presence of al-Shabaab, an al-Qaeda-linked Islamist militant group. And US troops have also worked on training Somali forces to conduct raids and capture al-Shabaab leaders.

According to the Pentagon, the mission against al-Shabaab won’t end — instead, the troops once stationed in the country will “maintain pressure against violent extremist organizations operating in Somalia” from bases in Kenya and elsewhere.

The Pentagon also said the military will “retain the capability to conduct targeted counterterrorism operations in Somalia, and collect early warnings and indicators regarding threats to the homeland.”

How successful the US has been in Somalia at this mission isn’t exactly clear. And the US’s methods for accomplishing its work against al-Shabaab have been met with sharp criticism from watchdogs, who argue counterterrorism operations in East Africa have been conducted without a proper level of accountability.

One of the US’s primary tools against al-Shabaab has been drone strikes, which it has been conducting in Somalia since 2007. The frequency of those strikes have increased significantly during the Trump administration, with 47 strikes carried out in 2018 and 63 in 2019, according to the New York Times. All told, the Trump administration has carried out at least 192 drone strikes in Somalia, an analysis by New America found.

Under Trump’s tenure, the oversight guidelines for strikes in Somalia, some of which are meant to minimize civilian casualties, have also been loosened.”

““Despite many years of sustained Somali, U.S., and international counterterrorism pressure, the terrorist threat in East Africa is not degraded: al-Shabaab retains freedom of movement in many parts of southern Somalia and has demonstrated an ability and intent to attack outside of the country, including targeting U.S. interests,” the report states.

And that ability has been on display of late. Recently, a CIA contractor was killed in action in Somalia, and al-Shabaab staged a January attack on a US facility in Kenya that resulted in the death of a US solider, two contractors, and the destruction of expensive military equipment — including a US surveillance craft.

Particularly in light of the January attack, US military officials in East Africa reportedly began to push for greater flexibility to launch airstrikes from Kenya, and Kenya’s President Uhuru Kenyatta also reportedly asked Trump for greater aid with countering al-Shabaab earlier this year. The troop redeployment would appear to accomplish both these aims.

And indeed, while US training of Somali security forces is expected to end, airstrikes against militants in Somalia will be continuing, since the air bases housing the US drones that carry out strikes in Somalia are currently based outside the country.”

The Constitutionality of Trump’s Impeachment Trial Is Not ‘Crystal Clear’

“Preconstitutional practice in England and America included impeachment of former officials. Ten of the 12 state constitutions that were written before the U.S. Constitution was drafted addressed impeachment. In those state constitutions, Kalt notes, “late impeachment was either required, permitted, or not discussed, but was nowhere explicitly forbidden.”

Did the Framers mean to break from historical practice by limiting impeachment to current officials? If so, they never clearly expressed that intent.

The Constitution says “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” It gives the House the “sole Power of Impeachment” and the Senate “the sole Power to try all Impeachments,” while limiting the penalties to removal from office and disqualification from future federal office.

This “poor drafting,” as Kalt describes it, leaves unresolved the question of whether the optional penalty of disqualification is enough to justify a Senate trial when the mandatory penalty of removal from office is no longer possible. As Turley sees it, “a private citizen is being called to the Senate to be tried for removal from an office that he does not hold.”

Kalt and many other scholars argue that the aims of accountability and deterrence would be frustrated if a president could avoid impeachment or trial by committing “high crimes and misdemeanors” toward the end of his term (as Trump is accused of doing) or by resigning (as Belknap and Richard Nixon did) after his misconduct comes to light. They also argue that disqualification is an important remedy when a president guilty of serious misconduct might plausibly make a comeback.

The “good faith” to which Turley aspires is hard to perceive in the arguments offered by most of Trump’s critics and defenders. As Stanford law professor Michael McConnell (who thinks Trump’s trial is constitutional) notes, “much of the discussion…consists of motivated reasoning on both sides that no doubt would be the opposite if partisan roles were reversed.””

Dr. Fauci and Dr. Birx detail how Trump’s coronavirus response was even worse than we thought

“It didn’t take long for the two scientific faces of former President Donald Trump’s failed coronavirus response to speak out about how dysfunctional efforts to curb the pandemic really were under the 45th president.

On the first weekend following Trump’s departure from the White House, Dr. Anthony Fauci and Dr. Deborah Birx — both members of the Trump White House coronavirus task force coordinated by Birx — did interviews with national media outlets in which they described a culture in the Trump White House that discounted scientific expertise and put a premium on the type of denialism that resulted in Trump continuing to hold packed political rallies even as coronavirus deaths and cases soared in the fall.

“We would say things like: ‘This is an outbreak. Infectious diseases run their own course unless one does something to intervene.’ And then he would get up and start talking about, ‘It’s going to go away, it’s magical, it’s going to disappear,’” Fauci told the New York Times.

Birx made similar comments to CBS during an interview with Face the Nation host Margaret Brennan, saying, “there were people [in the White House] who definitely believed that this was a hoax,” and adding that Trump had a penchant for listening to people who told him what he wanted to hear, even if that information had no scientific basis.

“I saw the president presenting graphs that I never made,” she said. “So I know that someone — someone out there, or someone inside — was creating a parallel set of data and graphics that were shown to the president. I don’t know to this day who, but I know what I sent up, and I know what was in his hands was different than that.”

Fauci corroborated that point, telling the Times that in the early days of the pandemic, he was “really concerned” to observe that Trump “was getting input from people who were calling him up, I don’t know who, people he knew from business, saying, ‘Hey, I heard about this drug, isn’t it great?’ or, ‘Boy, this convalescent plasma is really phenomenal.’”

“He would take just as seriously their opinion — based on no data, just anecdote — that something might really be important,” added Fauci. “It wasn’t just hydroxychloroquine, it was a variety of alternative-medicine-type approaches. It was always, ‘A guy called me up, a friend of mine from blah, blah, blah.’ That’s when my anxiety started to escalate.””

“What Birx and Fauci said during their interviews isn’t necessarily surprising. We’ve long understood that the Trump White House’s coronavirus response was a disaster, especially when compared with countries like Australia and Japan that have done a much better job limiting infections and deaths. We’ve known that Trump has a tendency to engage in wishful thinking and has an aversion to scientific reasoning.

But what Birx’s and Fauci’s willingness to speak out in the immediate aftermath of Trump’s departure from office does illustrate is just how bad things were under the previous administration. It now falls upon the Biden administration to try to clean up the mess left behind after a year of politically motivated short-term thinking, in which public health experts like Fauci and Birx had to struggle on a daily basis with questions about whether it was worth it for them to keep showing up at work.”

The ‘deep state’ of loyalists Trump is leaving behind for Biden

“A higher-than-usual number of Trump administration political appointees — some with highly partisan backgrounds — are currently “burrowing” into career positions throughout the federal government, moving from appointed positions into powerful career civil service roles, which come with job protections that will make it difficult for Biden to fire them.
While this happens to some degree in every presidential transition, and some political appointees make for perfectly capable public servants, Biden aides, lawmakers, labor groups and watchdog organizations are sounding the alarm — warning that in addition to standard burrowing, the Trump administration is leaning on a recent executive order to rush through dozens if not hundreds of these so-called “conversions.” The fear is that, once entrenched in these posts, the Trump bureaucrats could work from the inside to stymie Biden’s agenda, much of which depends on agency action.

The October executive order — which Biden is expected to swiftly rescind — has allowed federal agencies to help political appointees circumvent the usual merit-based application process for career civil service jobs, while moving career policymakers into a new job category with far fewer legal protections.

Thanks to weak transparency laws, the full impact of both changes may not be known for months.”