It looks like the DOJ is already moving in that direction. Earlier this week, the Justice Department summoned the president of the Georgia Republican Party and executed a search warrant on the phone of the Nevada GOP president. This means that there is good reason to believe that a federal judge found evidence of a federal crime on that phone. Perhaps most significantly, on Wednesday, federal agents searched Jeffrey Clark’s Virginia neighborhood home in an attempt to invalidate the election to send false statements to state officials who wanted to use the Justice Department.
Usually, lawyers are not a weak link. In my experience, lawyers have been the most difficult to prosecute. They are usually careful about what they say and what they write. But Trump’s petrified legal advisers — John Eastman, Rudy Giuliani, Sydney Powell, Jenna Ellis, and Clark — were not careful. In an attempt to overturn the results of the 2020 election, they said things that were false and were personally involved in the lies they told government officials. If the prosecutor can prove that one or more of them created false certificates, and they knew it was illegal to do so, they could be criminally liable. If they were aware of the false statements and advanced the scheme for transmission to the U.S. Senate, that might be enough. Clark faces the same criminal liability for writing false statements on an issue within the jurisdiction of the executive branch.
Already this week we heard what they were saying was false. Arizona House Speaker Rusty Bowers testified Tuesday that Giuliani and Trump had voted to order evidence of the 400,000 dead, after Giuliani admitted at one point that he had “many theories” but “no evidence.” Eastman also privately admitted that Pence would lose his theory that the election could be overturned 9-0 in the Supreme Court, but nonetheless, Trump, Pence, and others tried to convince him that his opinion was correct.
Based on the testimony given by the committee on January 6 in the previous five public hearings, we know that the certificates were false statements and were created for submission to the United States Senate. Someone who specifically carried out this scheme — signing documents, preparing documents, or organizing meetings — committed a crime if he knew the documents were false statements and intended to do something illegal.
We also heard extensive evidence of Clark’s petrified scheme, which violates the same statute. Clark wrote a letter to Georgia election officials falsely stating that the DOJ had fraudulent evidence that affected the state’s results and that the governor should call a special legislative session to approve a “separate list of voters in favor of Donald J. Trump”. Clark was repeatedly told by his DOJ superiors that there was no evidence to support that statement, and that he had no authority to conduct his own investigation or state to choose voters or how to choose, but he continued to promote the conspiracy until days earlier. Congress planned to secure the votes of the electoral college on January 6. It is significant evidence that Clark knew his statement was false and that he was doing something illegal. That’s why he was wearing pajamas on Wednesday morning watching federal agents search his house.
Since the statute criminalizing false statements requires that the statement be false and that the accused was doing something illegal, lawyers are the simplest targets of the DOJ. As a lawyer, it will be difficult for Eastman, Giuliani and Ellis to claim that they did not know they were acting outside the four corners of state law, gathering elected “alternatives” and presenting them in the Senate, even if presented by the state. official voters. It will also be difficult for Clark to argue that what he was doing was not illegal, given that his superiors forcibly told him so.
Charging these lawyers is also the best way for the DOJ if it wants to build a case against Trump. Any case against Trump is complicated because he was surrounded by petrified lawyers who told him what he wanted to hear. If he were prosecuted, he would probably say he was on the advice of those lawyers.
But if federal prosecutors build a case against Giuliani, Eastman, or Clark first, they can overturn one of them and have a key collaborator against Trump. Trump allegedly had one-on-one interviews with these lawyers, believing that they were protected by the privileges of lawyer-clients.
If one of them agrees to cooperate, the DOJ could go to a judge asking for an order to disclose Trump’s statements, with the exception of criminal fraud that allows for the disclosure of private communications between attorney and client. crimes.
Usually, I would say it’s a very uphill fight. But a California federal judge has already disclosed private communications between Trump and Eastman to the commission based on the felony fraud exception. The prosecutor may point to that judgment and request a similar verdict on verbal communications.
Any trial against Trump would not be easy. But the commission has facilitated the DOJ’s work by developing evidence of a direct and demonstrable crime and revealing how dishonest lawyers like Giuliani, Eastman and Clark were, turning them into mature targets.
