Judging Freedom - Judge says Trump _likely_ committed felonies about Capitol attack

Episode Date: March 28, 2022

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Hello there everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Monday, March 28, 2022. It's about 2.20 in the afternoon here on the east coast of the United States. A federal district court judge in Sacramento, California recently released an opinion just in the past hour on whether or not a subpoena could be quashed. Sounds kind of boring, isn't it? Well, it's not. The subpoena was from the January 6th Committee of the House of Representatives, and it was to a well-regarded professor of constitutional law named John Eastman. Professor Eastman was serving as one of President Trump's lawyers on January 6th, actually was from election day to January 6th, and in that time period received or sent 111 emails, not to President Trump or from President Trump directly, but to and from his chief of staff and his lawyers.

And the January 6th committee subpoenaed all 111 of them. Professor Eastman filed a complaint against the committee asking a federal judge to quash, to suppress, to invalidate the subpoena. Today, the federal judge ruled that of the 111 documents the committee wants, they're entitled to 101, and 10 can be kept secret for a variety of reasons. In the process of looking at these emails, which the judge was required to do in order to determine if they fit within a privilege, that is the ability of Professor Eastman to keep these emails confidential. He observed the behavior of the president himself

in encouraging people to interfere with a congressional function on January 6th, and the judge concluded that it's more likely than not that President Donald Trump committed the felony of obstruction of Congress or attempted obstruction of Congress by what he said and did to induce people to go into the Capitol building on January 6th. Now, how can he find that Trump committed a crime, more likely than not, if Trump's not a litigant in the case? Good question. The professor claimed that he enjoyed the attorney-client privilege, and because he was working for Trump and these emails were in the course of his work, even though they didn't go to or come from Trump, they were protected by that privilege. That's a very legitimate and appropriate argument to make. The government countered by saying there's an exception to that privilege called the crime fraud exception. When the lawyer here, Professor Eastman, and the client here, President Trump, are engaging in behavior that can be called a crime or a fraud, then their communications are not privileged. So it was necessary for this judge to determine

whether or not it was more likely than not that Professor Eastman and President Trump and others not yet named but involved with him were involved in criminal or fraudulent behavior. And with respect to the president and with respect to Professor Eastman, the judge concluded, yes. What was that criminal behavior? Inducing his supporters to prevent the Congress of the United States of America from counting and ratifying the electoral votes between Joe Biden and Donald Trump on January 6th. This is not a criminal conviction of Donald Trump because he hasn't been charged with any crimes. But it's an enormous leap forward for the January 6th committee. Whatever you think of it, some people say it's a bunch of political hacks. Other people say it's about time this was investigated.

But whatever you think of this committee, it's an enormous leap forward for them. It's a major legal and political setback for the president. It is not the end of the road. Knowing the president, he'll appeal this. And I would imagine Professor Eastman will do the same. We'll see where it goes. Remember, if you like Judging Freedom, like and subscribe, like and subscribe. Judge Napolitano, Judging Freedom.