Last week, a dense legal filing from California went public. According to the New York Times, in the filing, lawyers for the House committee investigating Jan. 6 “laid out their theory of a potential criminal case against” Donald Trump: “They said they had accumulated evidence demonstrating that Mr. Trump, the conservative lawyer John Eastman and other allies could potentially be charged with criminal violations,” and maybe even fraud. This isn’t a direct indictment or a criminal charge. But the committee wants to see if more documents from Eastman—a key figure in the events leading up to Jan. 6—may reveal fraud and other crimes on the part of both Donald Trump and Eastman himself. On Wednesday’s episode of What Next, I spoke with Ankush Khardori, a former federal prosecutor who’s previously contributed to Slate, about the committee’s theory, how it was pieced together, and what more may come of this, if anything. Our conversation has been edited and condensed for clarity.
Mary Harris: I wonder if we can start with the Jan. 6 committee itself. What has it been up to?
Ankush Khardori: The Jan. 6 committee is a special committee that was impaneled by Nancy Pelosi to investigate the attack on the Capitol. It is supposed to be both fact-finding and to inform legislative conduct, meaning potential lawmaking that could include security around the Capitol or even appropriations. What the committee’s been doing for the for the better part of a year has been in interviewing hundreds of people behind closed doors, gathering lots and lots of documents, and reviewing those mostly out of public view. For the most part, we haven’t had a whole lot of visibility into the information that the committee itself has been gathering.
The committee’s attention turned to John Eastman because of a six-page memo he circulated suggesting that Vice President Mike Pence could stop the 2020 election vote certification. Congressional lawyers argue that Eastman and Trump must have known this idea was outrageous. The lawyers attach testimony from a senior campaign adviser to Trump, who explains that a data expert had come to the White House to break the news that Trump was going to lose. So essentially, people in the White House should have known better.
That’s actually among the handful of facts that are new and legitimately significant. I think the committee selectively introduced this one, and it may have more such facts. Part of what this brief does well, as it relates to Trump and Eastman, is to lay out many data points in favor of the theory that they could not have believed that there was really fraud tainting the election results because they were being told ahead of the election that they were going to lose. They were being told by people like Bill Barr, by election security folks within the administration, that there was not widespread fraud.
There’s this email exchange between Eastman and one of Mike Pence’s lawyers included within the filing. It stands out to me because someone who is a lawyer for Mike Pence, writing from his White House account, knows his emails are subject to being subpoenaed. He knows that he’s a government worker and he’s saying things to John Eastman like, It was gravely irresponsible of you to advise the president in this way. We are under siege, I’m being moved from place to place, my wife and three kids are worried.
Parts of that email back and forth had been available in the public domain through press reports, but the whole thing is now available for anyone to see. I think another new and significant part that is not in the emails is described in the same lawyer’s testimony to the investigators. He said that in a conversation, Eastman acknowledged that his legal position would lose before the Supreme Court 9–0. As a testimonial fact, that is major because it’s basically a concession that the position Eastman was advancing was at odds with constitutional law. It’s all the more striking because at this point in time, we’re talking about a court comprised one-third of people that his client, the president, had appointed. This layer is saying Eastman acknowledged in real time that the legal theory here was advancing was untenable.
I wonder whether someone like John Eastman is being set up to take the fall. The emails with Pence’s lawyer are insinuating that Eastman pushed something and put it in Trump’s head. I wonder if that’s creating someone who would then be the bad guy, the one who is taken down by this, but it doesn’t go to Trump.
There’s actually one interesting aspect of this filing that I don’t think a lot of attention has been paid to: Part of this brief is about whether Eastman and Trump even had an attorney-client relationship. A common method of memorializing an attorney client relationship is an engagement letter in which the attorney in the client says, “I’m your lawyer and you’re my client.” You can have an attorney-client relationship without such a letter. The committee says it looks like there was an engagement letter, but it was never signed by Trump. So, the way to plug that hole as a factual matter would be for Eastman simply to put in a declaration from Trump saying that Eastman was his lawyer, and Trump’s not done that. I suspect that’s because Trump does not want to give him that declaration. This allows Trump to be able to say, Look, he’s not my lawyer, I don’t know what he was doing, I was hearing about an occasional meeting, but whatever he was doing with Pence’s lawyer and whatever things he was saying, he was not my agent.
Can you lay out how this filing makes the case against Trump himself? What are the potential charges, and how are they supported by the evidence in this filing?
There are two potential criminal charges identified in this filing. One is obstruction of an official proceeding—that’s a reference to the congressional proceeding on Jan. 6. The second criminal charge they’ve laid out is a conspiracy to impair government functions—the argument is that Trump, Eastman, and potentially others sought to obstruct Congress by advancing a factually and legally baseless theory for rejecting the results of the electoral certifications. The factual basis is, essentially, the many warnings they got about their claims of electoral fraud, as well as the baseless ness of the legal theory that they were using.
So the argument is, they should have known better?
Well, it has to be better than “you should have known better,” right? Because under criminal law, “should have known” is not sufficient to hold someone criminally liable.
So, that they did know better?
That is what the committee is arguing: that there’s evidence that these officials knew better. The committee is advancing circumstantial evidence to argue that in fact they did not believe that the legal theory was a legitimate legal theory, that they did not believe that their factual claims about election fraud were actually justified. That’s not an uncommon approach to establishing criminal intent, particularly in a fraud case. You may not have an admission from the defendant or the target of an investigation that they didn’t believe something. Instead, what you do is you establish that they’ve said something, and then you amass evidence indicating that they knew that that something was not true. That’s circumstantial evidence, and perfectly fine evidence.
What kinds of penalties do charges like this entail?
We have no idea, because we’ve never seen a case like this. There’s no precedent for saying that a close adviser of the president—and potentially even the president himself—may have committed a crime by trying to prevent the lawful transfer of power. But I just don’t see the Justice Department ever winding up there.
If you’re wondering how the Department of Justice would AVOID charging Trump after seeing a filing like this one, it’s because the evidence we know about so far doesn’t actually meet the standard for a successful criminal case. Instead, the filing basically says: We’ve got a theory here, and if we got our hands on John Eastman’s documents, we just might be able to prove it. The only way this congressional investigation would result in an actual case is if the DOJ took over, which would mean kicking up a political dust storm. Some people claim Garland may already be investigating Trump behind the scenes. But you’re not buying that.
Public indications don’t provide any reason to believe that that has happened. We haven’t gotten leaks. We haven’t gotten word of grand jury subpoenas, which witnesses are free to talk about if they like. In the case of the Mueller investigation, Trump and his people were very talkative in the media, and they actually used the media to their benefit as a way to defend themselves against the investigation. All that suggests to me is that a concerted investigation focused on Trump and his inner circle is not currently being conducted.
I think the most likely thing that is happening, just based on public indicators, is that the Justice Department is conducting a Jan. 6 investigation by working its way up from the rioters, and they may or may not end up getting close to Trump. It is not an investigative structure that is well-designed to get close to Trump. I think that’s extremely unwise, and I think that poses real long-term risks to our democracy and our constitutional order. What I see a lot is this kind of short-termism in the thinking of the Justice Department, where it’s doing what seems to be politically wise and expedient to them in the near term. But the long-term effects may not be visible until, well, the long term. That’s a really easy tradeoff to make when you’re the one in power because you’re not going to be in power forever. It’s a less appealing one to those of us who are trying to think along a longer horizon.