Janine Jackson interviewed legal expert Marjorie Cohn for the April 8, 2022, episode of CounterSpin about prosecuting Donald Trump. This is a lightly edited transcript.
Janine Jackson: When a judge, having seen confidential documents, declares the former president likely committed federal crimes in an unprecedented effort to overturn a democratic election, how would you, as a media outlet, alert readers to the remarkable development? If you’re USA Today, you choose the headline “The January 6 Committee Got a Boost From a Ruling on a Confidential Memo,” and describe the judge’s ruling as, first of all, “a win for the committee.”
Some media’s insistence on treating the crisis represented by the January 6 coup attempt and the ongoing “Stop the Steal” disinformation campaign as a Beltway spat is bizarre and disheartening. Fortunately, many others concur strongly with the thought expressed by US District Judge David Carter in that ruling: “If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and a former president of the National Lawyers Guild. She’s author of a number of books, including Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She joins us by phone from San Diego. Welcome back to CounterSpin, Marjorie Cohn.
Marjorie Cohn: Thanks for having me, Janine.
JJ: OK. This 44-page ruling from a federal judge, David Carter, was about whether Donald Trump’s lawyer, John Eastman—an architect of January 6—had to hand over documents to the House committee investigating it.
Eastman said they were protected by attorney/client privilege, and it was in explaining why they should not be that Judge Carter provided what I’ve seen you and others describe as a roadmap to bringing charges against Trump, and potentially others as well. Is that correct?
MC: That is correct, Janine. Eastman was claiming that he and Trump share the attorney/client privilege, and also what is called the work-product doctrine, which would shield them—concealing, basically, communications that had to do with criminal activity on January 6. Well, there is a crime/fraud exception to both the work-product doctrine and the attorney/client privilege, and that basically says that if the communications are made in furtherance of illegality, illegal activity, then the attorney/client privilege and the work-product doctrine don’t apply, and he has to turn over the documents. And in discussing that issue, Judge Carter found that it was more likely than not that Trump attempted obstruction of an official proceeding, and that Trump and John Eastman, his lawyer, committed conspiracy to defraud the United States. Those are two federal crimes.
And even though Judge Carter was dealing with a civil case, as you said, about whether John Eastman should turn over documents to the January 6 Committee of the House of Representatives, his finding that it was more likely than not that Trump committed these two federal crimes is basically equivalent to a finding of probable cause in a criminal case, probable cause to support an arrest.
So my feeling is that Judge Carter’s 44-page opinion provides a roadmap for the Department of Justice to bring criminal charges against Trump and Eastman. (Although the January 6 Committee can make a criminal referral to the Department of Justice, it can’t actually bring criminal charges, and there is a federal grand jury that is investigating the January 6 events and possible culprits.) And that the Department of Justice could go to the grand jury and say, “We want an indictment of Trump for these two federal crimes.”
JJ: I can see folks maybe getting hung up on the phrase from the ruling, “more likely than not,” Trump is “more likely than not” to have committed these federal crimes. But that has a particular legal meaning; that’s all he can say at this point, isn’t it?
MC: It is. In a civil case, the burden of proof is a preponderance of the evidence, or more likely than not, or 51%. In a criminal case, the prosecutor has the burden of proving guilt beyond a reasonable doubt, but that’s once you get to the trial stage. In a criminal case, in order to have a lawful arrest or an indictment, the prosecutor has to show probable cause to believe that the suspect committed the crime, and probable cause is basically equivalent to more likely than not, which was what Judge Carter found. And so there is plenty of evidence for the Department of Justice to request an indictment for the arrest of Trump and Eastman for federal crimes in a criminal case, basically.
JJ: Let me draw you out a little bit on the obstruction of an official proceeding, because one of the things that’s interesting about that charge is that it requires corruption, not just that the individual “obstructed, influenced or impeded or attempted to” an official proceeding, but that they did so corruptly, and I think that hangs a lot of people up because they say, “You don’t know what their intent was. You can’t prove corruption there.” But Carter says, yeah, we have other things that we can line up to indicate what he called a “corrupt mindset.”
MC: Yes, and keep in mind that in a criminal case, it’s rare that the defendant says, “I had a guilty mind,” “I acted corruptly,” “I intended to kill the victim,” and that would be direct evidence. But there is a thing called circumstantial evidence, and that is just as strong and reliable in a criminal case as direct evidence.
And what Carter concluded, basically, was that Trump knew that what he was doing was illegal. And Carter cited many, many opinions of federal court judges finding that there was no voter fraud. He cited the agency who is tasked with determining whether there is voter fraud, who concluded, no, there was no voter fraud.
And Trump certainly knew that the plan was illegal. This is Eastman’s plan to get Mike Pence to either reject the electors or delay the vote count. That was the plan that constituted obstruction or attempted obstruction of an official proceeding.
And then the conspiracy to defraud the United States was the agreement between Trump and Eastman to carry out this nefarious plan, which Judge Carter said both Trump and Eastman knew was illegal.
JJ: I think he also cited that call to Georgia Secretary of State Raffensperger, when Trump asked him to “find” votes, as showing that he was more interested in overturning the election, and not actually investigating it.
I’ve gotten frustrated by a tone in some reporting that suggests that we’re probably never going to get anything to stick with Donald Trump, and so we shouldn’t get excited about it. And I guess the implication is, without an assured conviction, the whole thing is a waste of time or a distraction or, worst of all, it “looks partisan.”
But, gosh, if this system can’t determine Donald Trump guilty of anything at all, then I would think exploring why not would be journalists’ job No. 1.
MC: I agree with you, Janine. And I think perhaps 30% of the people in this country are going to scream and yell if Trump is charged with a criminal offense, but the majority of people are in favor of the rule of law and holding Trump’s feet to the fire, and the evidence of his criminal wrongdoing is legion. On Thursday, the attorney general of New York asked a state judge to hold Trump in civil contempt for failing to comply with a court order in an investigation about whether the Trump Organization unlawfully falsified the value of assets for financial gain.
And Trump’s wrongdoing is out there for all to see. It has been documented for more than a year, really, and bringing criminal charges when there is probable cause to believe that Trump committed federal crimes is what the law requires.
When I was a criminal defense attorney, I would have loved to hear people say, “Well, the prosecutor isn’t assured of a conviction, so shouldn’t bring criminal charges against your client.” That’s not how our system works. The criminal justice system—if it is, indeed, just—means that when there’s probable cause that a crime has been committed, then the prosecutor should bring criminal charges. And then it’s up to a jury to decide whether that defendant is guilty beyond a reasonable doubt.
JJ: Do you have any thoughts for journalists who are going to be taking this up? We didn’t even get to the however many minutes of tape that no one can find, or the papers taken out of the White House or shoved down the toilet. And yet it doesn’t seem to be building to a story of the scale that it needs to, at least from my view.
It’s not that it’s not being covered. There are stories here and stories there and stories virtually every day, but I’m not sure that it’s getting the push, given the gravity, maybe, is the word, that it needs. But let me ask you: advice to journalists who are going to be covering this one way or another over the next weeks, months?
MC: I would pay attention to the White House telephone logs that the Select Committee has received, showing a gap of seven hours and 37 minutes on January 6, which was the time that the pro-Trump mob stormed the Capitol and committed the attempted insurrection. Trump initiated at least one call on a White House phone that was not recorded on the call log.
Keep in mind that Richard Nixon resigned in infamy because of 18 minutes missing from the White House tapes about the Watergate scandal. And it may well be that the bigger story here is Trump’s coverup of his criminal activity, just like during the Watergate scandal.
I think it’s important to pay attention to what the Select Committee uncovers. I think they’ve called or interviewed 800 witnesses, most recently Ivanka Trump and Jared Kushner. We’ll see what happens.
JJ: All right, then. We’ve been speaking with Marjorie Cohn. She’s professor emerita at Thomas Jefferson School of Law, and author of, among other titles, Drones and Targeted Killing: Legal, Moral and Geopolitical Issues, from Olive Branch Press. You can find her work on Truthout, and you can also keep up with it at MarjorieCohn.com. Marjorie Cohn, thank you so much for joining us this week on CounterSpin.
MC: Thanks for having me, Janine.
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This content originally appeared on FAIR and was authored by Janine Jackson.