. . . but swore they were true anyway.
. . . but swore they were true anyway.
A federal district judge in California has concluded that former president Trump swore to the truth of voting-fraud claims that he knew were false. The sworn representation was made in connection with a complaint the Trump legal team filed in Georgia federal court.
California district judge David O. Carter found that the then-president had been advised by counsel that the number of improper votes attributed in the submission to fraudulent voting was inaccurate. Yet Trump signed a verification under oath that incorporated and attested to the inflated numbers.
The finding was included in an 18-page opinion that Judge Carter issued in a litigation arising out of the House January 6 committee’s effort to subpoena emails of John Eastman, who was then a professor at Chapman law school in California and serving as Trump’s legal adviser in the effort to overturn the election that had been won by now-president Joe Biden. It is the third ruling Carter has made in ordering that some of Eastman’s emails be disclosed, over Eastman’s objections based on the attorney–client privilege and its derivative work-product privilege.
In his rulings, including the latest one, Carter has concluded that the crime–fraud exception to the attorney–client privilege applies. Under that exception, the privilege is pierced — and the communication is discoverable by the adversary party — if the communication was in furtherance of a crime or fraud. In that connection, Carter has concluded it was more likely than not that Trump and Eastman collaborated in two federal felonies: obstruction of a congressional proceeding (the January 6 joint session to count state-certified electoral votes) and conspiracy to defraud the United States (violations of Sections 1505 and 371 of the penal code).
To be clear, this is not a finding of guilt of these crimes beyond a reasonable doubt. It is an evidentiary finding that the crimes more likely than not were committed, such that the crime–fraud exception applies and disclosure should be made. Note that the former president is not a party to the lawsuit, was not represented by counsel in it, and had no opportunity to make counterarguments. While this qualification does not exculpate Trump, fairness requires stressing it because the January 6 committee, among other Trump agonistes, routinely describes Judge Carter’s rulings as if they amount to formal judgments of conviction.
In the aftermath of the 2020 election, then-president Trump’s lawyers filed a complaint in Fulton County, Ga., state court, claiming various categories of improper voting — e.g., 10,315 dead people, 2,560 felons, and 2,423 people not registered to vote. The state lawsuit was filed on December 4, 2020. A little over three weeks later, Trump filed an action in Georgia federal district court asking that tribunal to grant the unprecedented relief of both decertifying the results of the state’s presidential election and ordering the state legislature to appoint a new slate of presidential electors (notwithstanding that a slate of electors, certified under state law, had already cast Georgia’s electoral votes on December 14 — and that, in any event, December 8 was the federal statutory deadline for challenging state electoral votes).
According to Carter, Eastman’s emails reflect that Trump’s lawyers “discussed incorporating by reference [in the federal lawsuit] the voter fraud numbers alleged in the state petition.” On December 30, Eastman is said to have relayed “concerns . . . about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.” The next day, he elaborated:
Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has [sic] been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.
According to Carter:
President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them. President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers “are true and correct” or “believed to be true and correct” to the best of his knowledge and belief.
In a footnote, Carter goes on to describe some hedging that sought to obscure Trump’s awareness of the falsity of his numbers — and that, by so doing, strongly implies conscious deceit. The lawyers removed the accurate numbers from the body of the federal complaint, but expressly incorporated them by reference in the December 1 state filing. They also added (in a footnote) that Trump was only relying on information that was provided to him . . . but they do not mention that the information provided to him was that the numbers were wrong.
Carter makes a more dubious finding that the crime–fraud exception applies to emails in which Eastman and other lawyers state that “merely having [one of the election-challenge cases] pending in the Supreme Court, not ruled on, might be enough to delay consideration of Georgia” (i.e., to delay Congress’s counting of Georgia’s electoral votes that had been certified for Biden). The judge reasons that the merits of the Supreme Court suit were irrelevant to the Trump team; it was nothing more than an obstruction vehicle. While it is not entirely clear from Carter’s opinion, the Supreme Court lawsuit at issue may have been Texas v. Pennsylvania, which I wrote about here.
Carter’s conclusion does not necessarily follow from his premise. Even if the Trump team’s principal goal was to delay the congressional count, there would be nothing illegal about trying to achieve that goal by filing a lawsuit as long as the lawsuit was not fraudulent. Carter appears to be saying that the mere fact that one has the motive to delay makes the delay-causing lawsuit fraudulent. While it could be grounds for inquiring into the good faith of the lawsuit, it would not establish bad faith. For comparison, a collateral consequence of convicting an illegal alien of a crime is deportation; even if what really matters to the government is achieving deportation rather than conviction, that does not render the prosecution for the crime illegitimate.
To be sure, I thought the Supreme Court challenge on Trump’s behalf by Texas’s attorney general and other Trump allies was frivolous and said so at the time. But legally frivolous is not the same as criminally fraudulent; and Carter, in any event, does not address the merits of the Supreme Court lawsuit at all.
Judge Carter has ordered Eastman to turn several of his emails over to the committee, in whose final report they will presumably factor. More significantly for Eastman, federal agents in late June seized his cellphone pursuant to a search warrant. The grounds have not been disclosed, but federal law authorizes the issuance of a search warrant only upon a showing of probable cause that a crime has been committed.