I asked several former federal prosecutors and senior Justice Department officials their views on specific new evidence presented by the January 6 Select Committee. I asked each of them independently. What follows is the prompt I provided and their responses.
The January 6 Select Committee has publicly presented a high volume of information, which may make it difficult for some to identify and understand the more important findings. That includes key evidence of potential criminal liability. At its public hearing on Thursday, June 16, the Committee focused on President Donald Trump and his close associates’ effort to get Vice President Mike Pence to take action to overturn the election results during the congressional counting of electoral votes on January 6, 2021.
Homing in on the President’s state of mind, the Committee played a video of its transcribed interview of Pence’s general counsel Greg Jacob about a meeting with President Trump on January 4:
Did John Eastman ever admit, as far as you know, in front of the President that his proposal would violate the Electoral Count Act?
I believe he did on the 4th.
Later in the hearing, committee member Pete Aguilar (D-Ca) and the committee’s senior investigative counsel John Wood had the following exchange with Jacob (the first part with Aguilar being more relevant here):
Did Dr. Eastman admit in front of the President that his proposal would violate the Electoral Count Act?
So during that meeting on the fourth, I think I raised the problem that both of Mr. Eastman’s proposals would violate several provisions of the Electoral Count Act. Mr. Eastman acknowledged that that was the case, that even what he viewed as the more politically palatable option would violate several provisions.
But he thought that we could do so because in his view the Electoral Act was unconstitutional. And when I raised concerns that that position would likely lose in court his view was that the court simply wouldn’t get involved. They would invoke the political question doctrine and therefore we could have some comfort proceeding with that path.
But just to reiterate, he told you — maybe this was in a later conversation, but he told you at some point that if in fact the issue ever got to the Supreme Court, his theory would lose nine zero. Correct?
The next morning starting around 11 or 11:30 — we met for an hour and a half to two hours. And in that meeting — I’ve already described the text, structure, history conversation. But we started walking through all of that. And I said, you know, I said John, basically what you have is some text that may be a little bit ambiguous, but then nothing else that would support it including the fact that nobody would ever want that to be the rule.
Wouldn’t we lose nine to nothing in the Supreme Court? And again he initially started well, maybe you’d only lose seven to two, but ultimately acknowledged that, no, we would lose nine zero. No judge would support his argument.
In case this is not clear from the transcript, President Trump is in the January 4th meeting with Jacob, Eastman, Marc Short, and Pence. President Trump is not present in the January 5 meeting (where Eastman and Jacob discuss losing 9-0 in the Supreme Court). Following the meeting on January 4, 2021, Jacob wrote a 3-page memorandum dated January 5, 2021 addressed to the vice president in which the general counsel memorialized the following statement: “Eastman acknowledges that his proposal violates several provisions of statutory law.”
The following exchange also occurred during Thursday’s hearing:
Mr. Jacob, later that day [on January 6, 2021] you wrote again to Dr. Eastman. Let’s show that email on the screen. In that email you wrote, and I quote, “did you advise the President that in your professional judgment, the Vice President does not have the power to decide things unilaterally?” And you ended that email saying, “it does not appear that the President ever got the memo.”
Dr. Eastman then replied, “He’s been so advised.” And he ends his email with quote, “But you know him – once he gets something in his head, it’s hard to get him to change course.” Close quote.
Mr. Jacob, when Dr. Eastman wrote, once he gets something in his head, it’s hard to get him to change course. Did you understand the “he,” in that email, to refer to the President of the United States?
A copy of that email exchange between Eastman and Jacob can be found in a court filing.
The following questions relate to the potential criminal liability of President Trump.
As a former federal prosecutor or senior Justice Department official, what legal significance do you give to the above testimony and document in terms of determining an individual’s mental state?
In particular, what significance may that information hold for President Trump’s potential criminal liability under Obstruction of an Official Proceeding, 18 U.S.C. §1512(c)(2) (a charge brought against at least 275 January 6 defendants) or Conspiracy to Prevent an Officer from Discharging Any Duties,18 U.S.C. § 372 (one of the charges brought against Oath Keeper defendants), other federal offenses (e.g., 18 U.S.C. § 371)? Note, in a public court hearing of a January 6 defendant, a lead DOJ prosecutor told a federal court that someone could be guilty of obstruction in pressing Mike Pence to adjudge the certification in a particular way “if that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty.” Not necessary, but you may already be aware or want to consider how DC courts have addressed whether inducing another person to violate a legal duty in relation to an official proceeding meets the definition of acting with an unlawful purpose.
What are your views of these potential sources of criminal liability for President Trump’s course of conduct toward Mike Pence in light of the evidence presented by the Committee?
Please feel free to answer any or all of these questions or related issues that you consider relevant and important.
Liam Brennan, a former federal prosecutor and head of Connecticut’s Public Corruption Task Force, currently serves as Inspector General in Hartford:
The testimony from the January 6th committee this week was explosive for multiple reasons. First, it made clear that Trump was advised that his actions to stop the certification of President Biden’s election were unlawful. While there has always been circumstantial evidence to this effect, this direct evidence is more persuasive. Second, John Eastman’s involvement in the scheme has always dangled the possibility that Trump could raise an advice of counsel defense to any prosecution, theoretically negating the corrupt mental state needed for conviction. With email evidence showing that Eastman admitting that he advised Trump that Vice President Pence could not unilaterally reject the electoral college results, any possible advice of counsel defense crumbles. Testimony to this effect is powerful enough, but the emails and Gregory Jacob’s memorandum to Mike Pence detailing these conversations provides a contemporaneous recording of the events that are always weighty pieces of evidence for any jury. The Department of Justice has indicted many defendants with much less evidence than this. These revelations put great pressure on the DOJ and raise the question of whether our criminal law system holds any authority over the actions of a president.
Stuart Gerson, former Acting Attorney General of the United States, Assistant Attorney General, and an Assistant United States Attorney:
The signal value of the Select Committee so far at least is its disclosure of evidence that utterly negates any defense that Donald Trump or his closest advisers somehow lacked intent with respect to their actions as to the January 6 insurrection. It is clear that weeks before January 6 the White House staff under Trump’s direction engaged in a pattern of firings, transfers and otherwise diminishing agencies that could have prevented the events of the day. In addition it is clear that Trump and others close to him were advised, and were aware, that their conduct would violate the Electoral Count Act and perhaps other statutes. It is clear also that Trump was advised and knew even through communications from his daughter and the former Attorney General that he had lost the election and that there was no cognizable evidence of fraud. Put all these things together and it is clear that Merrick Garland would have grounds to seek indictments and would be able to deflect any argument that the participants in the seditious conspiracy lacked criminal intent.
Mary McCord, former Acting Assistant Attorney General for National Security at the U.S. Department of Justice, an Assistant U.S. Attorney, and is now Executive Director of the Institute for Constitutional Advocacy and Protection (ICAP) and a Visiting Professor of Law at Georgetown University Law Center:
Section 1512(c)(2) requires that there be a nexus between the wrongful conduct and an official proceeding and that the obstructive conduct be done “corruptly.” The evidence produced at the June 16 hearing of the House Select Committee established both. John Eastman’s proposal–for the Vice President to either reject the electoral votes from the states that submitted alternate uncertified slates of electors or to suspend the joint session and send the dueling slates back to the states in the hope that the state legislatures would change the outcome–had a direct nexus to the counting of the Electoral College votes required by the 12th Amendment. And the evidence that Eastman himself knew and told President Trump that his proposal would violate the Electoral Count Act, along with other evidence that the President was aware that there was no authority for the Vice President to overturn the election, establish that his efforts to pressure Vice President Pence to act unlawfully were done with corrupt intent. In other words, he knew he was pressuring the vice president to violate a legal duty. So did Eastman and Rudy Giuliani, who–based on the evidence produced at the hearing–joined in the apparent conspiracy to “obstruct, influence, or impede” the counting of the Electoral College votes.
Chris Mattei, former Chief of the Financial Fraud & Public Corruption Unit, U.S. Attorney’s Office for the District of Connecticut:
It is important to remember that the entire predicate for the pressure campaign against Vice President Pence was the lie that electors from certain states were illegitimate and, therefore, could be rejected. The Committee has already presented direct evidence that the former President knew he lost fair-and-square and that there was no meaningful fraud in the so-called “contested” states. So, putting aside whether the former President actually believed that the Vice President could reject electors, he knew that there was no factual basis for doing so. That knowledge is compelling evidence that the former President acted corruptly when he and others acting at his direction repeatedly urged Vice President Pence to reject electors.
Prosecutors will want to pair that evidence with evidence that the former President also knew that the act of rejecting electors was itself unlawful. Here, the most damning evidence presented by the Committee is Eastman’s email admission that, after all the back and forth, he ultimately told the former President that the Vice President lacked the authority to reject electors. Yet, the former President continued to insist. To present that evidence, prosecutors will likely seek the testimony of others who similarly advised the former President (or Eastman’s testimony pursuant to a cooperation agreement and guilty plea). On this issue, it is not enough to prove that Eastman knew his plan was unlawful, which he clearly did. The key, of course, is to prove that the former President knew that as well.
If they can develop that evidence, DOJ can make a compelling case that the former President conspired with Eastman and others to corruptly obstruct, influence, or impede Congress’ counting of electoral votes, under 18 U.S.C. § 1512(c)(2). Based on the evidence I’ve seen so far, I think this would be a more straightforward case than a prosecution under § 372.
Barbara McQuade, former United States Attorney for the Eastern District of Michigan and is now Professor from Practice at the University of Michigan Law School:
Proving guilt beyond a reasonable doubt is a very high standard, and it should be. Our system is built on the idea that it is better that 10 guilty people go free than that one innocent person be convicted. Intent is among the hardest elements to prove beyond a reasonable doubt because we cannot read another person’s mind. For that reason, juries are told that they should use their common sense to make reasonable inferences based on the totality of the circumstances.
That said, the evidence shows that Trump was aware that Eastman’s legal theory was a loser. It would be important to hear from John Eastman, Mark Meadows or others as to what specifically was said to Donald Trump. DOJ should consider immunizing them to get their testimony. Based on the currently available evidence, I could imagine a jury still finding some small margin for reasonable doubt as to whether Trump, a non-lawyer, relied in good faith on the argument of Eastman that while his theory many have violated the Electoral Count Act, the Act was unconstitutional, and so there was a narrow legal path to victory.
The evidence may support guilt under a willful blindness theory, which says that a person cannot deliberately ignore a high probability that a fact is true just because the fact is inconvenient. Here, Eastman admitted that he told Trump that Pence lacked the power to overturn the election, and a jury could conclude that Trump was aware of this fact even if he deliberately ignored it.
I think a better argument is that the underlying premise of the theory was itself illegal. There was no basis to throw out electors because there was no fraud in the election. As we heard on Monday, Meadows said there was “no there there.” Trump heard from his attorney general, his cyber security director, the Secretary of State of Georgia, and more than 60 judges that there was no fraud in the election. Trump just made it up. Pushing a legal theory obstructed an official proceeding regardless of whether the theory was valid because the factual basis for contesting the election was based on a lie.
Kristy Parker, former deputy chief, special litigation counsel, and trial attorney in the Criminal Section of the Civil Rights Division, and is now Counsel at Protect Democracy:
The evidence that former President Trump was told by John Eastman, who claims to have been acting as Trump’s lawyer at the time, that they were asking Vice President Pence to act illegally drives a stake through the heart of the idea that Trump lacked the criminal state of mind necessary to violate 18 U.S.C. §§ 1512(c)(2), 372, or 371 in connection with his effort to pressure Pence to ignore his duties under the Electoral Count Act. Under even the highest standard of intent (“consciousness of wrongdoing”), this evidence shows that Trump knew what he was asking Pence to do was illegal and removes the possibility that he could argue he acted under the advice of counsel. It also renders irrelevant once and for all any self-deluded belief Trump “sincerely” harbored about winning the election. The evidence that Trump was exhorting Pence to violate a legal duty is virtually beyond dispute; and evidence continues to emerge that Trump actively weaponized a violent mob both to obstruct an official proceeding and prevent Pence from discharging his duties on January 6. There is legal precedent in the D.C. federal courts under United States v. Morrison that inducing another person to violate a legal duty is acting “corruptly” for purposes of § 1512, which would allow Trump’s verbal pressure campaign to be charged even absent proof that Trump was connected to the mob. And evidence that Trump used a mob to pressure Pence would also easily meet the definition of “corruptly” under § 1512, as well as “force, intimidation, or threat,” which is required to show that a federal official has been prevented from discharging his duties in violation of § 372.
Jennifer Rodgers, former Deputy Chief Appellate Attorney of the U.S. Attorney’s Office for the Southern District of New York and is now Adjunct Professor of Clinical Law at NYU School of Law:
To prove a criminal offense against Donald Trump, DOJ must have admissible evidence establishing that Trump possessed the requisite mental state beyond a reasonable doubt. For a criminal charge focused on the scheme to pressure Mike Pence to unilaterally undermine the counting of the electoral college votes on January 6, DOJ would need to show that Trump understood, or was willfully blind to, the unlawful nature of what he was pressing Pence to do. I think the Select Committee has been largely successful in adducing convincing evidence of this for their purposes; numerous people (all of whom were either Trump administration officials or conservative Republicans) testified that the scheme was in fact unlawful and unconstitutional, and that Trump was informed of that many times and by many people, and the Committee, of course, need meet no specific burden of proof or admissibility requirements. That said, I don’t think the record as currently developed for public consumption will or should satisfy DOJ for their purposes, because to charge, DOJ will want to close off all possible arguments that Trump was acting in good faith based on the advice of John Eastman. And while there is certainly some evidence suggesting that Eastman did ultimately inform Trump that Pence did not have the legal authority to do what Trump wanted (a brief Eastman statement in the Eastman-Jacob email exchange of Jan. 6), that Trump purposefully ignored all advice that didn’t support the result he wanted, and that Trump would have been unreasonable to rely on Eastman’s opinion when so many of his other legal advisors were telling him otherwise, the record on these points could be expanded, particularly given the fact that Eastman’s ultimate concession that his legal theory would be unanimously rejected by the Supreme Court (undermining his prior statement to the President on January 4th that the governing statute is unconstitutional and would likely not be ruled upon in the courts), did not occur in Trump’s presence.
Joyce Vance, former U.S. Attorney for the Northern District of Alabama and is now Distinguished Professor of the Practice of Law at the University of Alabama School of Law:
What prosecutors would really like to have is direct testimony from an individual who says, “I told Trump this scheme violated the law. I looked him in the eye and told him we couldn’t do it and he said he didn’t care and we were going to pursue it anyhow.” Does that evidence exist? We don’t know for sure. Mike Pence, who could possibly have had such a conversation isn’t talking. We don’t know what else the committee has on tape from Ivanka, Jared and others close to Trump in this regard, but presumably, if the committee came across such a direct conversation, we would have heard about it during Thursday’s hearing.
Absent that, there is still plenty of circumstantial evidence available to show that Trump knew his plan was a coup, not a “save” from a “steal.” That’s why the committee pushed for detail on whether John Eastman discussed the plan’s illegality with Trump and the details of what was said. Testimony from Pence’s legal counsel Greg Jacob’s suggests the conversation occurred, but DOJ will have to prove it beyond a reasonable doubt and with admissible evidence. The volume of evidence revealed so far suggests DOJ can likely overcome these hurdles, but every element of proposed charges and the evidence lined up in support of each element will need to be carefully assessed, as will potential defenses. It’s not quite as easy as it looks from ringside.