Former President Donald Trump’s reaction to the 2020 election arguably violated several federal and state laws. But any effort to prosecute him for those alleged violations would face the possibly insurable challenge of proving criminal intent.
Given Trump’s long history of embracing self-flattering assertions at odds with reality, it seems plausible that he sincerely believed, despite all the countervailing evidence, that the election was subverted by systematic fraud. If so, his various efforts to prevent Joe Biden from taking office would have been, from his perspective, attempts to correct a grievous wrong rather than attempts to illegally obstruct the peaceful transfer of power.
The select committee investigating the January 6, 2021, Capitol riot showed that people close to Trump recognized who had actually won the election and tried to dissuade him from embracing wild conspiracy theories to the contrary. But that testimony did not conclusively prove that Trump privately agreed with those advisers even while publicly promoting the stolen-election fantasy. A recent ruling by a federal judge in California supplies further evidence to support that interpretation, suggesting that Trump knowingly submitted false claims about election fraud in Georgia as part of a federal lawsuit.
The decision, which US District Judge David O. Carter issued yesterday, involves a dispute between the January 6 committee and John Eastman, a former law professor who represented Trump in post-election litigation and aggressively pushed the idea that Vice President Mike Pence could unilaterally block or delay the congressional ratification of Biden’s victory. As part of its investigation, the committee seeking access to hundreds of Eastman’s emails. Eastman argued that the emails were protected 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.
In adjudicating that dispute, Carter had to determine not only whether those privileges applied but also whether the committee could override them based on the “crime-fraud exception,” which applies to legal advice “in furtherance of” a crime. Last March, for example, Carter ruled that the crime-fraud exception applied to a memo recommending that Pence “reject electors from contested states on January 6.” 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.”
In yesterday’s decision, Carter ruled that the crime-fraud exception applies to four emails related to Trump and Eastman’s “knowing misrepresentation of voter fraud numbers in Georgia when seeking to overturn the election results in federal court.” Carter says the emails indicate that Trump made those claims even though he knew they had been discredited.
In a state lawsuit filed on December 4, 2021, Carter notes, “President Trump and his attorneys alleged…that Fulton County improperly counted a number of votes,” including “10,315 deceased people, 2,560 felons, and 2,423 unregistered voters.” When they decided to file a federal lawsuit challenging the election results, Trump and his lawyers “discussed incorporating by reference the voter fraud numbers alleged in the state petition.” But in a December 30 email, Eastman “relayed ‘concerns’ from President Trump’s team ‘about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.'”
The next day, Eastman elaborated on those concerns: “Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the claims (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.”
Trump apparently was unfazed. “President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them,” Carter writes. “President Trump, moreover, signed a verification wearing under oath that the incorporated, inaccurate numbers ‘are true and correct’ or ‘believed to be true and correct’ to the best of his knowledge and belief.”
In other words, Carter says, “the emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public.” The emails therefore “are sufficiently related to and in furtherance of a conspiracy to defraud the United States.”
The “more likely than not” standard that Carter applied in this case, of course, is much less demanding than the proof beyond a reasonable doubt required for a criminal conviction. Eastman said Trump had been “made aware” that the claims about ballots cast by dead people, felons, and unregistered voters were “inaccurate.” But even if someone told him the numbers were wrong, and even if Trump was paying attention, it would have been completely in character for him to continue believing in them.
Around the same time, Trump was urging Georgia Secretary of State Brad Raffensperger to “find” the votes necessary to change the election results in that state. During his notorious January 2, 2021, telephone conversation with Raffensperger, Trump seemed desperate to believe any allegation, no matter how dubious, as long as it supported his conviction that he had beaten Biden.
One of those claims was that “dead people voted” in Georgia. “I think the number is close to 5,000 people,” Trump said. That estimate was less than half as big as the number cited in his own lawsuit, which gives you a sense of how little attention he paid to such details. “The actual number [was] two,” Raffensperger said. “So that’s wrong.”
Trump refused to believe it. “In one state” [Michigan, supposedly]we have a tremendous amount of dead people [voting],” he said. “So I don’t know—I’m sure we do in Georgia, too. I’m sure we do in Georgia, too.”
Trump was sure the election had been stolen, even though he was hazy on the details. If that article of faith was impervious to Raffensperger’s patient refutations, wouldn’t it have survived whatever skepticism Trump’s advisers may have expressed about the Georgia lawsuit’s claims?
Any reasonably prudent person would have been leery of sticking with those numbers. But for Trump, admitting that the numbers were phony would have been tantamount to admitting the possibility of defeat. Once he started pulling on those threads, the whole tapestry of self-deception and willful blindness might have unraveled.
That assumes Trump actually thought he had won reelection. Maybe it was all a cynical game from the beginning. Even at this late date, it is hard to tell whether Trump drank his own Kool-Aid.