WASHINGTON — A federal judge’s conclusion this week that former President Donald J. Trump likely committed crimes related to his efforts to overturn the results of the 2020 election intensified consideration of whether the Justice Department can, should, indict him or will attempt the same crimes.
But the fact that a judge reached that conclusion doesn’t necessarily mean that a prosecution would come to the same conclusion. Here’s an explanation.
What is the case?
It’s a dispute over a subpoena issued by the House committee investigating the Jan. 6, 2021 attack on the Capitol by Trump supporters who were trying to block Congress and then-Vice President Mike Pence from killing Joseph R Biden Jr.’s election victory
The subpoena directs Chapman University to release emails from a former professor, John Eastman, who provided Mr. Trump with legal arguments supporting his attempts to overturn the election. Mr. Eastman filed a lawsuit to block the subpoena, arguing that his messages were covered by attorney-client privilege and attorney-client privilege.
What did the judge say?
In his ruling, Judge David O. Carter of the Federal District Court for the Central District of California said the Jan. 6 committee could receive certain emails under an attorney-client privilege exception for communications intended to further a crime or fraud, Because it is “more than likely” that Mr Trump unlawfully attempted to obstruct a government proceeding.
What is the theory that Mr. Trump committed crimes?
Mr. Trump publicly and privately pressured Mr. Pence to refuse or delay the counting of Electoral College votes from states where Mr. Trump baselessly claimed his loss to Mr. Biden was fraudulent. The idea is that Mr. Pence had no legitimate basis for doing so, so Mr. Trump’s pressure on him amounted to an attempt to unlawfully obstruct a government process and defraud the government.
The evidence that Mr Trump pressured Mr Pence is well documented. The judge issued his ruling, interpreting that evidence at that moment as likely criminal, not because of a breakthrough in the investigation that uncovered new, conclusive evidence, but because of the timing of the subpoena: the Jan. 6 committee had to argue publicly that the Exception for felony fraud was to get Mr. Eastman’s emails and the judge agreed.
Is the verdict a roadmap for an indictment?
Not necessarily, because the context is completely different. As Judge Carter noted, “The Court’s job is only to decide a dispute over a handful of emails. This is not law enforcement; this is not even a civil action.”
What is a major challenge in pursuing Mr. Trump?
Evidence of Mr. Trump’s sanity – specifically that he had the requisite criminal intent.
For example, the Disability Act states that in order for the defendant’s action to prevent a governmental proceeding to be a crime, the defendant had to act “corruptly”. But what that means isn’t detailed in the law, and the Supreme Court hasn’t provided a definitive answer, posing risks and complications for prosecutors evaluating a potential case.
One possibility, said Laurie L. Levenson, a criminal law professor at Loyola Law School in Los Angeles, is that prosecutors would have to prove that Mr. Trump knew for certain that Mr. Pence had no legal basis to do what he did demanded. Another possibility is that prosecutors would just have to prove Mr Trump had at least reason to believe his conduct might be unlawful and would proceed anyway, she said.
Why is it difficult to prove Mr. Trump’s thinking?
Because although senior government officials told him there was no factual or legal basis for Mr. Pence to unilaterally reject some states’ electoral votes or otherwise slow down certification, Mr. Eastman told Mr. Trump that he interpreted the law as that it entitles Mr Pence to take such a step.
Julie O’Sullivan, a Georgetown University criminal law professor, said that in any criminal trial it is ultimately up to the jury to decide what Mr. Trump really believed. Unless evidence emerges that he told someone at the time that they knew what he said was wrong, she said, that will be a challenge.
“The problem with Trump is defining his state of mind when he’s so changeable,” she said. “He believes whatever he wants to think, and it doesn’t necessarily have to be based on reality. That’s a tough argument for a jury to say he knew something specific.”
The Aftermath of Capitol Riot: Key Developments
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Judge says Trump likely committed crimes. In a January 6 trial in a civil case, the House Committee set out the crimes it believed Mr. Trump may have committed. The federal judge assigned to the case ruled that Mr Trump most likely committed crimes in trying to overturn the 2020 election.
Text messages from Virginia Thomas. In the weeks leading up to the Capitol riots, Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, sent several texts imploring Mark Meadows, President Trump’s chief of staff, to take steps to overthrow the election. The House of Representatives Jan. 6 committee is likely to request an interview with Ms. Thomas, people familiar with the matter said.
contempt charges. The Jan. 6 House Committee voted to recommend Peter Navarro, a former White House adviser, and Dan Scavino Jr., a former deputy chief of staff, for criminal contempt of Congress’ charges for refusing to serve his to comply with subpoenas.
Why wasn’t this issue a hindrance to Judge Carter?
Because the legal standard of proof for deciding the felony and fraud exemption applicable in a subpoena dispute is lower than for convicting a person of a felony.
Judge Carter concluded that Mr Trump “probably knew the plan to disrupt the election count was wrong” by applying the “preponderance of evidence” standard, according to which an allegation is considered proven if it is more likely is true than false. If the judge thought that the evidence indicated a 51 percent likelihood that Mr Trump committed a crime and a 49 percent likelihood that he did not, that was sufficient to rule that the January 6th Panel could receive certain emails.
What standards of evidence would prosecutors have to face?
Prosecutors would have to convince a jury that the same evidence established “beyond a reasonable doubt” – a much higher standard – that the former president committed a crime. Furthermore, instead of convincing a judge of this proposal, prosecutors would have to convince all 12 members of a jury, since guilty verdicts must be unanimous.
“A judge determining whether evidence needs to be disclosed is nowhere near the level of evidence you need in a criminal case,” Ms Levenson said. “‘Beyond a reasonable doubt’ means the jury is almost certain that Trump did in fact do this – and he did it with the intent required by law.”
Several criminal lawyers have pointed to this challenge as a likely explanation for why the Justice Department may be reluctant to indict a former president, instead allowing the broader investigation to proceed.
“Proving something in front of a judge with overwhelming evidence is very different from proving it beyond a reasonable doubt to a jury,” said David Alan Sklansky, professor of criminal law at Stanford University. “It’s reasonable to expect prosecutors to be extra careful not to be hasty when it comes to charging a former president with a crime.”