According to Bess Levin and her sources, Trump’s plan to avoid prison involves throwing John Eastman under a bus. Eastman was turned down for a pardon by Trump. She reminded her readers that David Carter, a federal judge in California, “wrote in March, ‘Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history,’ adding: ‘The illegality of the plan was obvious.’ And while neither Trump nor the upper echelons of his inner circle are typically known for their intelligence or powers of perception, they apparently do seem to understand that what Eastman did looks really bad, as does the ex-president’s association with him— particularly as the Justice Department and January 6 committee dig deeper into the events before, during, and after the Capitol attack. Which is why they’ve reportedly devised a plan they believe will keep the heat off Trump re: responsibility for the whole thing: blaming it all on Eastman and pretending Trump had nothing to do with it… According to reporters Asawin Suebsaeng and Adam Rawnsley, the former president has, in recent weeks, ‘confided to those close to him that he sees no reason to publicly defend Eastman,’ and is also ‘deeply annoyed’ over the negative attention the attorney’s machinations have shined on Trumpworld, which is a hilariously rich take given all the actions Trump took to stay in power independent of Eastman, up to and including claiming election fraud before the election had even happened.”
Par for the course, he’s already telling people he hardly knows Eastman at all. Levin reported that he is persona non-grata around Trump. “Over the past several months, Trump has been strongly advised by lawyers and several associates not to openly discuss Eastman or his work— and to personally avoid the man altogether, according to three sources familiar with the matter. At this time, Trump, his legal advisers, and various political counselors would prefer to cut ties with Eastman and keep their distance, in a perhaps vain attempt to build a firewall between the lawyer who enthusiastically pitched strategies for delegitimizing the 2020 election outcome and the ex-president who repeatedly sought his help.… In the top ranks of MAGAland, there’s a clear attitude towards Eastman (‘Johnny,’ as some Trump advisers derisively call him): He might be going down. So be it, as long as he doesn’t take anyone else down with him.”
Meanwhile, former federal prosecutor Renato Mariotti wrote this afternoon that although the possibility of charging Trump criminally remains a “complex legal question, there is a straightforward crime that could be charged quickly— and the targets are Trump’s band of dishonest attorneys.” Yes, he’s talking about Eastman but not just referring to Eastman. He has Rudy Giuliani, Sydney Powell, Jenna Ellis and Jeffrey Clark in mind as well. “Of all the evidence uncovered by the committee,” he wrote, “what jumps out to me as a former federal prosecutor are the ‘fake elector’ certificates signed by Trump electors and submitted to former Vice President Mike Pence in an effort to delay the certification of the electoral votes on January 6. Those certificates contained statements that are easily proven false.”
[O]n Wednesday, federal agents raided the suburban Virginia home of Jeffrey Clark, the acting assistant U.S. attorney general who wanted to use the Justice Department to send false statements to state officials in an effort to overturn the election.
Typically, lawyers are not a weak link. In my experience, lawyers have been the most difficult defendants to convict. They’re usually careful about what they say and what they write down. But Trump’s coterie of dishonest legal advisers— John Eastman, Rudy Giuliani, Sydney Powell, Jenna Ellis and Clark-- weren’t careful. In their attempts to overturn the results of the 2020 election, they said things that were demonstrably false and were personally involved in lies told to government officials. If prosecutors can prove that one or more of them created the false certificates, and knew that doing so was illegal, they may have criminal liability. If they knew about the false statements and advanced the scheme to transmit them to the U.S. Senate, that may also be enough. Clark is facing the same criminal liability for writing false statements in a matter within the jurisdiction of the executive branch.
We have already heard testimony this week that they knew what they were saying was false. Arizona Speaker of the House Rusty Bowers testified Tuesday that after Giuliani and Trump promised him evidence of 400,000 dead people who voted, Giuliani at one point admitted that he had “lots of theories” but “no evidence.” Similarly, Eastman privately admitted that his theory that Pence could overturn the election would lose 9-0 in the Supreme Court, but he nonetheless tried to convince Trump, Pence and others that his view was right.
As attorneys, it will be hard for Eastman, Giuliani and Ellis to claim that they had no idea that they were acting outside the four corners of state law by convening “alternative” electors and submitting them to the Senate even though the state had already submitted official electors. It will also be hard for Clark to argue that he had no idea that what he was doing was illegal, given that his superiors forcefully told him so.
Charging those attorneys is also the best route for DOJ if it wants to build a case against Trump. Any case against Trump is complicated by the fact that he surrounded himself with dishonest attorneys who told him what he wanted to hear. If he was prosecuted, he would likely claim that he was acting on the advice of those attorneys.
But if federal prosecutors build a case against Giuliani, Eastman or Clark first, they could potentially flip one of them and have a key cooperator against Trump. Presumably Trump had forthcoming one-on-one conversations with those attorneys, believing that they were protected by attorney-client privilege.
If one of them agreed to cooperate, DOJ could go to a judge seeking an order permitting disclosure of Trump’s statements under the crime-fraud exception to attorney-client privilege, which permits disclosure of private communications between an attorney and client if they were about ongoing crimes.
Ordinarily, I’d say that is a very uphill battle. But a federal judge in California already disclosed private communications between Trump and Eastman to the committee based on the crime-fraud exception. Prosecutors could point to that ruling and seek a similar ruling as to verbal communications.
Any prosecution of Trump would not be easy. But the committee has made DOJ’s job easier by developing evidence of a straightforward, readily provable crime and revealing how careless dishonest lawyers like Giuliani, Eastman and Clark were, making them ripe targets.