Former President Donald Trump speaks at a rally on January 15, 2022 in Florence, Arizona. (Photo by Mario Tama/Getty Images)
The House Jan. 6 Committee accused former President Donald Trump for the first time of plotting a “criminal conspiracy” to block Congress from certifying the 2020 election results.
The move indicates the committee believes it has evidence to back that claim up—and will likely refer it to the Justice Department for a possible prosecution.
The claim came in a legal filing on Wednesday night that argued that the panel should be allowed to access emails from attorney John Eastman, the author of the notorious “coup memo” that laid out a plan he thought could allow then-Vice President Mike Pence to block Congress from certifying Biden’s win.
“Information available to the Committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts, and that Plaintiff’s legal assistance was used in furtherance of those activities,” the committee’s attorneys argue in a 61-page legal brief.
Eastman has tried to block Congress from seeing those emails, claiming attorney-client privilege with Trump. But the committee claims that he helped orchestrate the plot so attorney-client privilege doesn’t hold up—and it’s asking a judge to force Eastman to turn over his communications with Trump and his team.
“The facts we’ve gathered strongly suggest that Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power,” January 6th Committee Chairman Bennie Thompson and Republican ranking member Liz Cheney said in a joint statement Wednesday night.
The committee argues in the brief that because the law doesn’t extend attorney-client privilege in cases where a “client consults an attorney for advice that will serve him in the commission of a fraud or crime,” Eastman can’t protect the memos.
Prosecutors haven’t charged Eastman, Trump or any of Trump’s top advisers with crimes related to the Jan. 6, 2021 Capitol riot or the concurrent efforts by Trump and his team to get congressional allies, state legislators and then-Vice President Mike Pence to block Congress from certifying Biden’s victory.
The committee itself has no ability to charge Trump or his allies with crimes. But they can refer the case to the Justice Department, which would then have to decide whether or not to pursue prosecution. This legal brief strongly signals that the committee will indeed do so once their own investigation is wrapped up, though it’s unclear even if it does so whether the Justice Department will opt to criminally prosecute Trump.
The Justice Department has already charged more than 750 people for their role in the Capitol riot that occurred that day, after Trump rallied his supporters to Washington and encouraged them to march on Congress.
There was a major breakthrough on that front as well on Wednesday, as a member of the Oath Keepers militia pled guilty to engaging in seditious conspiracy and promised to cooperate with prosecutors to uncover the plot.
Joshua James, a member of the extremist group, was one of 11 people charged with sedition last month, as well as other charges including assaulting a D.C. police officer inside the Capitol building, and destroying documents to hide his communications with other Oath Keepers.
James’ decision to flip and work with prosecutors could help flesh out exactly what the Oath Keepers and other militia groups plotted to accomplish on Jan. 6, and whether they had any direct communications with Trump allies.
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