The Daily - ‘The Illegality of the Plan Was Obvious’

Episode Date: April 4, 2022

After months of investigation by a congressional committee, a federal judge has found that President Donald J. Trump and his allies most likely engaged in illegal activity in the wake of the 2020 election.How did the committee achieve that ruling?Guest: Luke Broadwater, a congressional reporter for The New York Times.Have you lost a loved one during the pandemic? The Daily is working on a special episode memorializing those we have lost to the coronavirus. If you would like to share their name on the episode, please RECORD A VOICE MEMO and send it to us at [e-mail]. You can find more information and specific instructions here.Background reading: The judge’s comments in the civil case of a lawyer, John Eastman, who advised Mr. Trump, marked a significant breakthrough for the House committee.The ruling does not necessarily mean that a prosecution would arrive at the same conclusion. Here’s an explanation.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. For months, the Congressional Committee investigating January 6th has been trying to make the case that Donald Trump and his allies committed a crime. Well, in a blunt ruling today, a federal judge says it is, quote, more likely than not that former President Donald Trump and a right-wing attorney, John Eastman, committed crimes in an attempt to stop the certification of the 2020 election.

A federal judge just ruled that in all likelihood, they did. In the ruling, Judge David Carter wrote, if Dr. Eastman and President Trump's plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. Today, my colleague Luke Broadwater with the story of how the committee achieved that ruling. It's Monday, April 4th. Okay.

I feel like one of the annoying things about working from home for this long is that we have this weird absence of people saying hello to each other on the show, so I'm going to insist today that we start the show absence of people saying hello to each other on the show. So I'm going to insist today that we start the show with me saying, hello, Luke. Hi, Michael. It's really nice to see you. Well, thank you. It's nice to see you through a computer screen as well. We go with what we've got. So, Luke, what context do you think we need to understand this major court case?

Right. Well, as you know, the January 6th committee appointed by the House has been conducting a sprawling and aggressive investigation into the events of January 6th, but also the events that led up to it. As part of that investigation, they have interviewed more than 800 witnesses. They have issued more than 100 subpoenas. And they've gotten a lot of cooperation. A lot of powerful, important people have sat down with them for depositions. But there have been some, about two dozen of Trump's allies, who have been fighting the subpoenas

with lawsuits in federal court. Right. They don't want to show up. They don't want to play ball. Absolutely. They don't want to give any documents. They don't want to sit for depositions. And one of them is the conservative lawyer, John Eastman.

Hello, America. Sorry, I had to say that. Eastman. Hello, America. Sorry, I had to say that. Eastman is the lawyer who members of both parties have said wrote what they call the blueprint for a coup. We know there was fraud, traditional fraud that occurred. We know that dead people voted. There were two memos he authored that explored different scenarios for how Donald Trump could stay in power despite losing the election. And all we are demanding of Vice President Pence is this afternoon at one o'clock, he let the legislatures of the state look into this so we get to the bottom of it. So we get to the bottom of it. And ultimately, it came down to Vice President Mike Pence being willing to exploit what Mr. Eastman saw as a loophole in the Electoral Count Act to throw out legitimate electoral votes for Joe Biden in favor of electors for President Trump from states he did not win.

And anybody that is not willing to stand up to do it does not deserve to be in the office. It is that simple. Which, of course, makes Eastman a very logical person for the January 6th committee to want to get testimony and documents from because, as you've just said, he's at the center of this plan. Actually, he's the author of it to try to block Joe Biden from becoming president.

Yes, they view him as a central key witness. And so the committee tries two avenues to try to get information from John Eastman. The first is they schedule a deposition to try to get an interview with him in person to learn more about these plans and his role in them. And the second is through their subpoena, they demand documents related to his plans, to his conversations with Donald Trump, to any effort to overturn the 2020 election. John Eastman does appear for his deposition, but he thwarts the committee at every turn.

He pleaded the Fifth Amendment, his right against self-incrimination, 146 times. And he did it so often, he and his lawyer, that he just started saying, Fifth, instead of, I plead the Fifth. And so they get nothing from him in person. So the committee needs to rely

on the hard evidence of actual paper, actual digital files, actual documents. But there, John Eastman files a lawsuit to block turning over these records to the committee. And his central argument for why he shouldn't have to do this is he says all his communications and all his planning around January 6th is covered by attorney-client privilege. Hmm. Who's his client? He says Donald Trump's his client. Interesting. And he presents a letter that is unsigned in which Donald Trump supposedly is to retain him as his lawyer, but the committee argues there's no proof that Donald Trump ever signed that letter or agreed to it. That said, Eastman continues to assert it.

And because he does so, the committee has to go to civil court over it, which you can imagine is pretty frustrating for the committee as they has been working quietly for months compiling the case of Donald Trump's criminality as it relates to January 6th. Wait, how does Eastman invoking attorney-client privilege create an opportunity for the committee? Explain that. So one way you can pierce attorney-client privilege, if you're the committee, is to invoke part of the law that allows an exception to it called the crime fraud exception. And what that means basically is criminals can't use their lawyers to carry out their crimes and say it's all protected because of attorney-client privilege. And so if the committee can establish that what Eastman and Trump were doing amounted to a crime,

then the committee can get around this attorney-client privilege that Eastman is invoking. Interesting. And so they take this opportunity to lay out in federal court the case they've been building for why January 6th and Donald Trump's role in it was a crime. Because if they can prove that Eastman and Trump committed a crime, then they can get these records that John Eastman has sued to block.

Absolutely. So what crimes do they accuse Eastman and Trump of? They accused Eastman and Trump of two federal felonies. One is conspiring to defraud the United States, and the second is obstruction of an official proceeding of Congress. Two enormous charges. Absolutely. It was a bombshell court filing. And how in this filing does the January 6th Committee try to prove that they committed those two crimes?

Well, I'll walk you through the evidence. Please do. The first charge that they look at is obstruction of Congress. And in particular, the evidence here centers on two meetings in the days before January 6th. The first is on January 4th, in which Donald Trump and John Eastman have Mike Pence and his top lawyer and his chief of staff come into the Oval Office. And at that meeting, Eastman presents the plan to Pence for how he can reject the Biden electors chosen by the voters to keep Donald Trump in power. Once it appears that Mike Pence is unconvinced to go along with this,

once it appears that Mike Pence is unconvinced to go along with this, there is then a second meeting the next day on January 5th, in which Eastman goes directly to Pence's top lawyer, Greg Jacob, and again tries to persuade him with arguments for why Mike Pence should go along with this plan. On top of that, Trump himself then directly goes to Pence and pressures him using a vulgarity to insist that he needs to go along with the plan to keep Trump in power. Got it. They say this amounts to a clear effort to obstruct an official proceeding of Congress. Right. The official proceeding of Congress being the certification of Joe Biden's rightful victory. Correct. Okay. And what evidence does the

committee present for the charge of defrauding the United States? Well, we can start with those conversations between John Eastman and Greg Jacob. In those, according to Jacob's testimony before the committee, Eastman acknowledges that what he's doing is illegal. He calls it a minor violation of federal law. And he acknowledges in one conversation that these actions would not stand up to judicial scrutiny. He admits that he would lose 9-0 before the Supreme Court if they went through with this plan. So that gets to his state of mind, that he knew what he was doing was not in compliance with the law, but he continued to press for it anyway. Right. Thus, he may be committing fraud. Correct. According to the committee. The other main argument the committee stresses again and again

through these filings is that Donald Trump himself also knew or should have known that what he was doing was fraudulent, that the election was not stolen, and that people he had employed in the top ranks of the White House told him this repeatedly, and yet he continued to press the case because he wanted to stay in power. Mm-hmm. So, for example, you'll remember that in Georgia, there were accusations that ballots for Biden were being smuggled in in the middle of the night. But Trump's own Justice Department looked into these claims

and could find no evidence that they were true. And so Richard Donahue, who was the deputy attorney general at the time, had this quote in the committee's deposition. And he said, I told the president myself several times in several conversations that these allegations about ballots being smuggled in in a suitcase and run through the machines, it was not true. That we had looked at it, we had looked at the video, we had interviewed the witnesses, and it was not true. Donahue testified that Trump told him, what do I have to lose? If I do this, what do I have to lose? And Donahue replied, Mr. President, you have a great deal to lose.

Is this really how you want to end your administration? You're going to hurt the country. So there's an example of somebody close to Donald Trump telling him directly to knock it off. And yet Trump continues. Which the committee is, again, arguing amounts to fraud. Correct. Got it. And so I think this brings us now to the judge's ruling in this case. So tell us about that. Yes. So the judge issues his ruling, and he sides overwhelmingly with the January 6th Committee. He rules that Donald Trump and John Eastman likely committed both the obstruction

of Congress count and the conspiracy to defraud the United States count. He says that their plan was a coup in search of a legal theory. And he says the illegality of their plan was obvious. And he says the illegality of their plan was obvious. So very interestingly, this seemingly off-to-the-side lawsuit filed by John Eastman against the January 6th committee to prevent it from getting his documents and the committee's response to the lawsuit ends up producing this very unexpectedly explosive ruling. Yes.

And this is a long-tenured judge who has heard a lot of cases in his time. And he is looking at the facts and the evidence and applying it to the law. And he says overwhelmingly, in his opinion, what happened on January 6th was a crime on behalf of Donald Trump and John Eastman. We'll be right back.

Luke, what does it mean for this judge to have made this kind of ruling? So it's important to understand what this ruling is and what it isn't. This is a civil case and a civil ruling about getting documents from John Eastman. It's not a criminal prosecution. It does not mean Donald Trump will be put in handcuffs and marched out of Mar-a-Lago. It means that 101 of John Eastman's emails will have to be turned over to the committee, but they do not have an immediate criminal impact on either man. That said, this ruling is a major breakthrough for the committee, and here's why. For months, the committee has been working tirelessly on this case, And their end goal is not just to write

the authoritative report about what led to January 6th and recommend changes to laws to try to prevent it from happening again. They are also compiling a case that they can turn over to the Justice Department and argue that this amounts to crimes on behalf of Donald Trump and his allies. That's what's known as a criminal referral. Right.

And this was the first test in court before a judge of the evidence they've compiled so far. They put these explosive allegations into court saying the president of the United States had committed felonies and they got exactly the ruling they wanted. And in fact, the judge's language was, in some cases, even stronger than the language that they had used in their filing. Right. You're saying that this was a successful road test of the kinds of charges that the January 6th committee may want the Justice Department to bring against Donald Trump and his allies. And now the committee can say, look, a federal judge has said we made a strong criminal case. And so you, the Justice Department, you might get the same outcome if you decide to bring actual criminal charges against the former president and those around him. Yes, there are more than a dozen former federal prosecutors working on this

case on behalf of the January 6th committee, and they took this as a major win that they are on the right track in compiling the case against Donald Trump. And it will only bolster their attempts to pursue a criminal referral against Donald Trump and his allies when the committee wraps up its work. Okay, but let's make sure we introduce a lot of caveats here. Because like you said, Luke, this was a ruling by a judge in a civil court. And so is there a version of this where the ruling that you have just described to us shouldn't give the January 6th committee a whole lot of confidence?

Yes, for a couple of reasons. One, this is a civil case, not a criminal case. In a criminal case, you have a much higher standard, which is beyond a reasonable doubt. And in a civil case, this threshold a much higher standard, which is beyond a reasonable doubt. And in a civil case, this threshold is much, much lower. This was a preponderance of the evidence. And so that's a big jump to go from what lawyers view as a 51% of the evidence threshold to a overwhelming standard, which is beyond a reasonable doubt. The second consideration is the politics of this.

We have no tradition in America of one administration coming in and trying to prosecute the previous administration. We don't throw our past presidents in jail. We don't do that. We have no history of it. And so for the Justice Department to pursue a former president would be unprecedented. And so that's a serious consideration for anyone at the Justice Department who is thinking about charging Donald Trump. Do we want to be the country where you prosecute the person who just held the White House before you. So there's a lot of serious considerations for Merrick Garland and the Justice Department as they consider this case. Well, to that point, do we know how the Department of Justice,

which is the ultimate decision maker here, whether to charge the president or charge Eastman or charge anybody else with a federal crime related to January 6th. Do we know how the Department of Justice sees this civil ruling and the conclusion that that judge came to? Well, we don't. Attorney General Merrick Garland has been very tight-lipped.

The Justice Department is doing its own investigation, and we know that they're proceeding on that. They've charged more than 770 of the rioters, and we do know they're exploring the possibility of working their way up the food chain to perhaps even higher-ranking people who were part of the plan. But again, Garland hasn't been commenting about that investigation or what the January 6th committee has been looking into. So we don't know specifically how he views the ruling. That said, I've talked with several former federal prosecutors who said that this ruling has to be ringing alarm bells at the Department of Justice. judge who has looked at the evidence presented by the January 6th committee and written the ruling that he did, you're headed down the path towards a strong case.

So what these former federal prosecutors are telling you is that this ruling may, at the very least, increase the pressure on the Justice Department to bring a criminal case against the former president, which would be one of the most momentous decisions of our time. What we can say is that it gives the people who want to charge the former president more ammunition. Meanwhile, the committee will take this evidence, these emails from John Eastman, and continue to build their case as they investigate January 6th. and continue to build their case as they investigate January 6th. We've heard there's plans to bring in 100 more witnesses as they move towards holding public hearings

and eventually then filing their final report in which they will unveil all of the evidence they've accumulated over this last year. And they believe that all of that will only build on top of the case that they've been constructing and that they successfully argued in front of the judge in the case of John Eastman. I have to say,

I am very much struck by the irony of the fact that if John Eastman had just complied with the January 6th committee's subpoenas. This would never have happened, right? In trying to block the committee's work, it seems based on this ruling, he may have actually just strengthened their hand. invokes attorney-client privilege, there is never the opportunity this early in the process for the January 6th committee to test out their arguments about criminality. And it gave them a rare chance to put all of this evidence into the court record and have a judge

decide whether or not they were on the right path. And they heard overwhelmingly that they are. Luke, thank you very much. We appreciate it. Thanks for having me. On Sunday, the Times reported that Attorney General Merrick Garland is under growing pressure, especially from Democrats, to bring criminal charges against Donald Trump over his role in the events leading up to and on January 6th, and that President Biden himself has confided to his inner circle that he believes Trump should be prosecuted. We'll be right back. Here's what else you need to know today. Over the weekend, Russian forces began to retreat from the towns around Ukraine's capital, Kiev, suggesting that their original plan to seize the city has collapsed.

During the retreat, Ukrainian officials discovered what they said was evidence that Russian troops had executed Ukrainian civilians, including in the town of Bucha, northwest of Kiev. Footage from Bucha, posted by Ukraine's defense ministry, and photographs from news agencies, showed the dead bodies of men in civilian clothes, some of whom had their hands tied behind their backs. You can't help but see these images as a punch to the gut. some of whom had their hands tied behind their backs. You can't help but see these images as a punch to the gut.

On Sunday, world leaders, including U.S. Secretary of State Antony Blinken on CNN, reacted to the images with horror. I think the most important thing is we can't become numb to this. We can't normalize this. This is the reality of what's going on every single day, as long as Russia's brutality against Ukraine continues. Today's episode was produced by Rochelle Bonja, Diana Nguyen, and Muj Zaydi. It was edited by Rachel Quester and Paige Cowan, with help from Liz O'Balin, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landfer of Wonderly. That's it for The Daily.

I'm Michael Barbaro. See you tomorrow.