The U.S. House committee investigating the Jan. 6, 2021, attack on the Capitol says it believes Donald Trump committed criminal acts, including conspiracy to defraud the United States, in his attempts to block the certification of the 2020 election he lost.
Lawyers for the select committee made the claims in a court filing late Wednesday challenging conservative lawyer John Eastman’s refusal to turn over documents the panel has requested, which relate to his role in trying to persuade then-vice president Mike Pence to reject electors from states won by President Joe Biden.
Eastman, who has said he was acting as a lawyer and advisor for Trump’s re-election campaign, cited attorney-client privilege in a reason for not turning over the documents. But the committee’s court filing argues that claim is voided by a “crime fraud exception.”
The filing proceeds to detail what could be the basis of a criminal case against Trump, Eastman and other potential co-conspirators — the clearest signal yet that Trump could face charges if the U.S. Justice Department were to pursue them.
“The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States,” the committee wrote in a filing submitted in U.S. District Court for the Central District of California.
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The committee says Eastman’s documents themselves will prove to the court that Trump and his campaign engaged in “common-law fraud,” or fraud “made with knowledge of its falsity.”
The panel said it found evidence that Trump sought to obstruct an official proceeding — in this case, the certification of the election results — by trying to strongarm Pence to delay the proceedings so there would be additional time to “manipulate” the results.
“The evidence supports an inference that President Trump and members of his campaign knew he had not won enough legitimate state electoral votes to be declared the winner of the 2020 Presidential election during the January 6 Joint Session of Congress, but the President nevertheless sought to use the Vice President to manipulate the results in his favor,” the filing states.
The filing also details how both Trump had been informed numerous times by his lawyers and campaign officials that claims he and others were making about widespread election fraud were false. It also contends that Eastman admitted the arguments he made contending Pence had legal authority to send electors back to the state legislatures were illegal, but pressed them anyway.
It is not yet clear what impact the filing will have, since lawmakers do not have the power to bring charges on their own and can only make a referral to the justice department. The department has been investigating last year’s riot, but has not given any indication that it is considering seeking charges against Trump.
“The Select Committee is not conducting a criminal investigation,” Mississippi Rep. Bennie Thompson, the committee’s Democratic chairperson, said in a statement.
“But, as the judge noted at a previous hearing, Dr. Eastman’s privilege claims raise the question whether the crime-fraud exception to the attorney-client privilege applies in this situation.”
Eastman, the former dean of Chapman University law school in Southern California, wrote a memo that argued Pence could keep Trump in power by overturning the results of the election during a joint session of the Congress convened to count electoral votes. Critics have likened that to instructions for staging a coup.
Pence refused to do that. But on the day of the vote count, Eastman spoke at the rally of Trump supporters in Washington that preceded the deadly attack on the Capitol. At least seven people died either on or after that day, and more than 100 law enforcement officers were injured.
The filing also details excerpts from the committee’s interviews with several top Trump aides and members of Pence’s team, including chief of staff Marc Short and chief counsel Greg Jacob.
In a Jan. 6, 2021, email exchange between Eastman and Jacob, Eastman pushes for Pence to intervene in his ceremonial role of overseeing the certification of the electoral votes.
Jacob replies: “I respect your heart here. I share your concerns about what Democrats will do once in power. I want election integrity fixed. But I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results-oriented position that you would never support if attempted by the opposition, and essentially entirely made up.”
He added, “And thanks to your bulls—-, we are now under siege.”
Later that evening, according to the filing, Eastman implored Jacob “to consider one more relatively minor violation (of the Electoral Count Act) and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here.”
The committee argues in the filing that the exchange proves Eastman “knew what he was proposing would violate the law, but he nonetheless urged the Vice President to take those actions.”
The filing also takes issue with Eastman’s privilege arguments, detailing how Eastman has repeatedly spoken about his advice to Trump and the campaign and his plans to bring the electoral count process to a halt.
The committee also says that when asked for proof that Eastman had been hired as legal counsel for Trump’s campaign, Eastman submitted an unsigned letter of engagement of services — which the panel says is insufficient.
— with files from the Associated Press
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