On Monday, federal Judge David Carter reached a remarkable conclusion: Donald Trump, when he was the leader of this country, and attorney John Eastman “launched a campaign to overturn a democratic election, an action unprecedented in American history.” And thank goodness for that; everything about Carter’s stinging 44-page rebuke of Trump, Eastman and others should be stunning and unprecedented. We don’t want to live in a society in which any of the actions surrounding the 2021 insurrection are normal, accepted or met without scrutiny and consequences.
Carter’s decision reminds us how close our country came to the abyss.
The legal question before Carter was fairly narrow: whether the House committee investigating the insurrection at the Capitol on Jan. 6, 2021, could obtain 111 emails sent from and to Eastman, the former dean of Chapman Law School, who provided political and legal counsel to Trump. Carter methodically examined each of the legal arguments and concluded that of the 111 emails, only 10 were covered by an evidentiary privilege and therefore didn’t need to be handed over to the Jan. 6 committee.
Perhaps more important than Carter’s ultimate conclusion, though, is that his opinion succinctly tells the tale of the real-life nightmare we all lived — the one in which our former president tried to take our representative democracy from us. Carter’s decision reminds us how close our country came to the abyss and how, if we fail to examine what happened, “January 6 will repeat itself.”
Carter spent dozens of pages dissecting Eastman’s claims that the emails in question were covered by attorney-client privilege and the work product privilege, but it’s worth pointing out a few of the more startling, and yet entirely correct, legal conclusions.
First, with respect to whether Trump tried to obstruct an official proceeding, which is, of course, a crime, Carter concluded it was “more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.” As Carter highlights, in our government “leaders are elected, not installed.” And yet Trump tried to “subvert this fundamental principle.” Second, and relatedly, Carter determined that given the evidence, “it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.”
While many of us are understandably focused on whether the Justice Department will bring federal charges, we should also turn our focus to some preventive measures. Both of these conclusions mean Trump not only acted unethically, immorally and reprehensibly but that, according to a federal judge who has seen the evidence, he also most likely engaged in criminal behavior. The fact that Eastman is likely to have engaged in criminal behavior explains why he is so focused on keeping emails he sent and received private and out of the hands of the Jan. 6 committee. The big question, of course, is whether any of this means that Trump, Eastman and others will be on the receiving end of federal criminal indictments. Maybe, but not certainly. Carter has concluded that it is more likely than not that criminal behavior occurred. That is a different and lower standard than the one prosecutors would have to prove if they decide to bring criminal charges — proof beyond a reasonable doubt. And the Jan. 6 committee doesn’t have the power to bring criminal charges. It will finish gathering evidence and then come out with a report and decide whether or not to recommend that the Justice Department bring criminal charges. The Justice Department will and must then make its own independent assessment. We are, in other words, more than a few steps away from a criminal indictment. But while many of us are understandably focused on whether the Justice Department will bring federal charges, we should also turn our focus to some preventive measures. As Carter reminds us, we experienced “a coup in search of a legal theory,” and much of it played out before our eyes and is already public. We already knew about Eastman’s plan to thwart the peaceful transfer of power by sharing detailed plans to have then-Vice President Mike Pence act contrary to and outside of his constitutional authority and fail to count electoral votes from certain states (those Trump erroneously claimed he had won). We know that Trump pushed Pence to follow Eastman’s treacherous plan. We know that in the end Pence didn’t and that the plot to undermine our democracy unraveled. We should also know that there is absolutely no guarantee we don’t fall in the next time bad actors bring us to the edge of the abyss.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
