In a ruling related to a congressional investigation of the Jan. 6, 2021, assault on the U.S. Capitol, a federal judge this week concluded that it is “more likely than not” that former President Donald Trump committed two separate federal crimes as part of an effort to overturn Joe Biden’s victory in the 2020 presidential contest.
The ruling, from David O. Carter, U.S. District Court judge for the Central District of California’s Southern Division, concerned an effort by attorney John C. Eastman, an adviser to the former president, to claim that certain documents being sought by the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol are privileged, and that the committee is not entitled to them.
The case involved 111 documents, the majority of which the judge determined to be non-privileged material. Congressional investigators argued that the remaining 11, which might have been privileged under normal circumstances, are subject to the “crime-fraud exception,” which holds that documents cannot be considered privileged if they were created to further the commission of a crime.
Carter ruled that only one of the documents was subject to the crime-fraud exception, but in doing so, he explicitly said that he believes the evidence in the case suggests that Trump committed two federal crimes.
“Based on the evidence, the Court finds that 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,” Carter wrote.
Additionally, he wrote, “Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”
A legal first
“Given this is the first time, I think, a judicial opinion has ever bluntly called a president a criminal, one may say it's unusual,” Mark A. Graber, a professor of law at the University of Maryland School of Law, told VOA.
The ruling, Graber said, was “stark and blunt, but probably to the point. The evidence is showing that the former president probably did commit a crime.”
However, Graber pointed out, to the extent that the ruling itself does any damage to the former president it is, at least for now, purely political.
Trump has not been formally charged with a crime, Graber noted, and “a judge cannot make a ruling announcing a person is a criminal.”
A spokesperson for the former president called Carter’s ruling “absurd and baseless.”
Trump, who has used his personal website to issue statements since being removed from major social media platforms in 2021, appeared to respond to the ruling in a pair of statements.
One, issued Monday, said, “So the Radical Left Democrats in Congress and the Unselect Committee continue to seek the destruction of lives of very good people, but have no interest in going after the criminals and thugs who cheated like mad dogs on the 2020 Presidential Election. All the evidence is in and conclusive, but they, and the Fake News Media, refuse to look at or report it. They call it the Big Lie, but the Big Lie is the exact opposite—they are the liars, they are the cheaters ...”
On Tuesday, the former president followed up with a second statement: “So, let’s get this straight. The Democrats commit massive and overwhelming voter fraud in the 2020 Presidential Election, and they want the Republicans to go to jail for investigating and protesting a very crooked Election? Republicans must get tough (and smart!) and not let them get away with the Crime of the Century!”
U.S. courts repeatedly found no credible evidence of voter fraud in the 2020 presidential election, dismissing a flurry of lawsuits brought by Trump’s allies.
While Carter’s ruling is not the same as an actual indictment of the former president, it could certainly be viewed as a roadmap for a criminal prosecution that some federal judges might find compelling, according to observers.
“Clearly Carter is trying to push people in that direction and judges supply roadmaps all the time,” said Graber.
It remains unclear whether the Justice Department is planning to bring any charges against the former president.
The ruling would seem to make it more likely that the January 6 Committee will make a criminal referral to the Justice Department. However, that already appeared likely, as members of the committee have said publicly that they believe they have evidence that the former president committed crimes connected to the effort to overturn the election.
Other evidence missing
The ruling came just a day before the Washington Post and CBS news broke the story that White House records of President Trump’s phone calls on January 6 are essentially blank for more than seven and one-half hours, including the time when the Capitol was under assault.
The records, known as the president’s “daily diary” are, by law, supposed to contain a record of the president’s activities during the day, including the names of people he speaks to on the phone. The lack of a record of phone calls during the assault on the Capitol conflicts with numerous reports of Trump speaking with lawmakers and others during the time in question.
The lack of a record has led to speculation that Trump used phones belonging to aides, or perhaps “burner” phones meant to be used and then discarded.
In a statement to the Washington Post, Trump said, “I have no idea what a burner phone is, to the best of my knowledge I have never even heard the term.”
Editor's note: Due to a typographical error, a previous version of this story misstated the date of the Jan. 6, 2021 U.S. Capitol insurrection.