Donald Trump’s notoriously shady presidency generated two impeachments, plenty of litigation, and almost endless allegations of wrongdoing, culminating in his insurrectionary struggle to stay in office after his administration’s expiration date.
But until this week, no one in the U.S. judicial system had officially suggested the 45th president might have committed a crime. Now California federal district court judge David Carter (a Clinton appointee) has ruled that Trump “more likely than not … corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,” and that Trump and his attorney John Eastman “more likely than not … dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.” These findings were made by Carter in order to determine whether emails between Trump and Eastman (on the latter’s email account at California-based Chapman University) met exceptions to the usual rules of attorney-client privilege because they were executed in the furtherance of a crime. In the end, Carter, on various grounds, ordered Eastman to turn over 101 of 111 emails at issue to the House Select Committee investigating January 6.
This finding that Trump committed one or two felonies when trying to interfere with the operation of the Electoral Count Act of 1887 is indeed historic; no president has ever been adjudged to have committed a crime while in office. But before anyone gets excited or outraged by the image of the ex-president doing a perp walk in leg irons, it’s important to understand that Carter has no power to do anything with that finding other than to use it to make a decision on a dispute over document production between Eastman and the January 6 committee (and it’s likely his decision will be appealed by Eastman). Three additional steps would have to take place for Trump to face the music as a potential felon: a criminal referral by the January 6 committee, approval by the full House, and then prosecution by the U.S. Department of Justice.
The committee has already made criminal referrals for former Trump strategist Steve Bannon, former Justice Department official Jeffrey Clark, and former White House chief of staff Mark Meadows. It is reportedly on the brink of additional referrals for former Trump White House advisers Peter Navarro and Dan Scavino. As NPR reports, the full House has so far approved referrals for Bannon and Meadows, and the Justice Department has only moved to prosecute one case, that involving Bannon. Politico observes that Carter’s ruling “could increase pressure on the Justice Department and its chief, Attorney General Merrick Garland, to conduct an aggressive investigation that could lead to such charges” against Trump. But that would be a politically loaded decision, particularly since Trump is presently the most likely 2024 general election opponent for Garland’s boss.
In MAGA-land, where Trump can never be wrong but can only be wronged, this latest development will be just another effort to hide 2020 election fraud while persecuting the ex-president and his merry band of thuggish retainers. But if Trump ever does face legal consequences for what he tried to do after losing the 2020 election, Carter’s ruling could be a landmark.