Criminal Justice & the Rule of Law Democracy & Elections Executive Branch

Donald Trump, John Eastman and the Silence of the Justice Department

Benjamin Wittes
Tuesday, March 29, 2022, 3:28 PM

How can it be that the most devastating legal opinion ever written about an American president may not trigger a criminal investigation?

Donald Trump on Jan. 12, 2021 (Official Photo from Trump White House Archives)

Published by The Lawfare Institute
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It is no exaggeration to say that the history of the United States has never seen an account of a president’s conduct quite so devastating as the first nine pages of Judge David Carter’s opinion of March 28 in Eastman v. Thompson. The opinion, legally speaking, concerns the Jan. 6 committee’s efforts to secure emails from John Eastman, the law professor who provided President Trump with advice aimed at overturning the 2020 election. But that is not why it will be remembered. 

Certainly Watergate produced no document about Richard Nixon comparable to it in its combination of brevity, spare factual simplicity, and total evisceration of its subject’s honor and conduct. Nor did Teapot Dome or the Whiskey Ring scandals produce such material concerning Warren Harding or Ulysses S. Grant. Nothing that Lawrence Walsh had to say about Ronald Reagan or that Kenneth Starr wrote about Bill Clinton, both after years of investigation and exposition at great length, remotely approaches it in power. 

Yet at the risk infuriating readers, I want to point out a paradox about the opinion: Despite the power of its narrative, despite its correct statement that Trump likely violated criminal laws, and despite its laying out the contours of those violations clearly and without apparent ambiguity, the opinion will actually not necessitate a Justice Department criminal investigation of the former president.

Before explaining this point, I want to take a moment to appreciate a genuinely historic piece of judicial writing. The opinion’s first section—entitled “A. Facts”—begins on page three of Judge Carter’s opinion and runs through the middle of page 12. In a footnote attached to the word “Facts” in the subhead leading the section, Carter notes in a fashion characteristic of the section’s understatement, “In this discussion, the Court relies solely on facts provided by Dr. Eastman and the Select Committee in their briefing and attached exhibits.” 

He is not exaggerating. The section contains no judgments, no legal interpretations, no conclusions. It contains virtually no rhetoric at all. What’s more, the section does not contain a whole lot of new facts. The story of Eastman and Trump’s efforts to overturn the 2020 election, the relationship between that effort and Trump’s concurrent plot to decapitate the Justice Department, and ultimately to the insurrectionary activity of Jan. 6, 2021, has dribbled out bit by bit over months already. And to the extent the current litigation has revealed new material, that mostly emerged in the committee’s briefing and the accompanying exhibits a few weeks ago.

What makes Judge Carter’s account so powerful is that it is linked tightly to record evidence, that it tells the story in an end-to-end fashion crisply and efficiently, and that it thus assembles the evidence into a coherent account of the big picture. I cannot do Carter’s account justice; please do read it. For present purposes, let me just say that it leaves the fair-minded reader in no doubt that the events that took place between Joe Biden’s defeat of Trump at the polls and congressional certification of Biden’s victory on Jan. 6 were an all-out effort by the lame duck president to seize and retain power in unapologetic defiance of the law using extra-constitutional means—up to and including violence directed against a coordinate branch of government. 

Such a story requires no denunciation from the judge. His account of it alone constitutes its own denunciation, at least it should to decent citizens of a functioning democracy. 

Judge Carter’s opinion is attracting attention less because of its opening section than because of its final one, in which he finds that Trump likely committed crimes and that Eastman’s attorney work product, in one instance, is thus not privileged under the crime-fraud exception to the attorney work product doctrine. 

On its own terms, the opinion seems uncomplicatedly correct on this point. The question before Judge Carter is whether it is more likely than not that Eastman’s legal services were being used in furtherance of a crime. The standard of proof here is relatively low—the preponderance of the evidence—and the judge did not have before him the many arguments that would complicate, say, an attempt actually to prosecute Trump or Eastman for these crimes. 

In this context, the judge certainly appears to be correct that Trump was using Eastman’s legal services in conduct that, as a prima facie matter, violates both 18 U.S.C. § 1512(c)(2) and 18 U.S.C. § 371, the former of which forbids the corrupt obstruction of an official proceeding and the latter of which criminalizes conspiring to defraud the United States. In at least one important respect, Carter goes significantly beyond holding that the evidence meets what he takes to be the relevant legal threshold in the U.S. Court of Appeals for the Ninth Circuit. He writes specifically that the evidence before him “exceed[s]” even the showing necessary to find that Trump acted corruptly, and he cites voluminous evidence that the former president and Eastman both knew full well that Eastman’s legal arguments were nonsense and that his proposed course of action was unlawful. To have a judge write this, all tied rigorously to specific pieces of evidence, about a former president’s mental state and conscious awareness of criminality is no small matter.

In any event, it is difficult to disagree with Judge Carter that “[b]ased on the evidence ... it is more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.” And it is just as difficult to disagree with him that “it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session[.]”

So I know what you’re thinking: If the opinion is devastating and if it correctly concludes that the president probably committed crimes, doesn’t that require a criminal investigation on the part of the Justice Department? 

The answer to that question is complicated in a fashion I am sure will annoy many readers. First, an investigation may already be open. Second, Judge Carter’s opinion could well trigger one if one does not already exist—both of Trump and particularly of Eastman—by changing the Justice Department’s discretionary judgment about whether an investigation is wise at this time. After all, a federal judge saying that crimes have probably been committed in a high-profile matter doesn’t happen every day. That said, third, for reasons I will explain, the decision doesn’t require anything of the Justice Department. If the department has decided for legal reasons that a prosecution of Trump in this matter could not happen—and there are reasons to worry it may have done so, in my view—this opinion will not force it to shift gears. 

An important preliminary matter of background: The specific context of Judge Carter’s opinion matters a great deal. The point of this opinion was not to determine whether the former president committed crimes but whether privilege protects certain documents against production to the committee. As such, the judge was using a different standard of evidence and he was not focusing on certain questions the Justice Department will certainly consider. Carter himself acknowledges this point clearly in the final paragraph of his opinion, the one place in the entire opinion where his rhetoric crosses the line into needless rhetorical grandstanding:

More than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it. The Court is tasked only with deciding a dispute over a handful of emails. This is not a criminal prosecution; this is not even a civil liability suit. At most, this case is a warning about the dangers of “legal theories” gone wrong, the powerful abusing public platforms, and desperation to win at all costs. 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. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself. (emphasis added) 

Amidst the judge’s apparent call for prosecution, in other words, is a frank acknowledgement that his task is different from the department’s.

Remember also that the facts on the basis of which Judge Carter ruled on Monday have been available to the Justice Department for some time, and the department has long been capable of doing the same legal analysis as Carter did on its own—as, indeed, the committee itself has done and outside analysts have done as well. So the first possibility, as a group of Lawfare writers acknowledged (myself included) back when the committee filed its brief in this case, is that the Justice Department already has opened a case based on these facts. It might be the case, we wrote then:

that the Justice Department or FBI is already quietly investigating these charges (or similar ones) and never needed any prodding from anyone. 

If that’s the case, then the department is certainly showing extraordinary—even admirable—stealth. At a minimum, we can say with confidence that an investigation, if it has been opened, has not taken the kind of overt investigative steps that make news. The press is aware of no witnesses or documents that have been subpoenaed nor of any search warrants that have been executed. If such an investigation exists, it remains at a relatively preliminary stage. 

A related possibility is that there is no specific investigation of this matter in isolation, just the larger investigation of possible crimes committed in connection with Jan. 6, of which this fact pattern presents one among many. Investigations, after all, tend to center around crimes, not people, with the individuals and suspects coming into and going out of investigative scope at different times. In other words, it is possible that as part of the investigation of Jan. 6, the department is considering whether obstruction and conspiracy were committed by Eastman, Trump and others. 

What is completely clear, however, is that if the Justice Department has not opened a criminal investigation of Trump and Eastman or contemplated obstruction or conspiracy by them in the context of the larger Jan. 6 investigation, it is not because the evidence on which Judge Carter ruled Monday has been unavailable to the FBI and prosecutors. 

In the Lawfare discussion of the committee’s brief early this month, we posited that the likely explanation was discretionary, if the Justice Department were indeed not active on the matter. Perhaps the department is deferring to the committee’s investigation, letting the committee develop the facts on this matter of the president while the department focuses on seditious conspiracy cases against the Oath Keepers, for example. 

We also described “[a]nother possibility” that we thought “more remote”: “that the department has studied the legal argument the committee is making and has, for some reason, concluded as a matter of law that it would or could never bring a such a case—and thus that it should not conduct a criminal investigation of a former president based on this theory.”

In reflecting on the matter since helping to write that piece, I have come to think that the legal factors may actually predominate over the discretionary ones. That is to say, if there is no ongoing Justice Department activity with respect to Trump’s conduct under either § 1512(c)(2) or § 371, that may well be because the Justice Department’s own interpretation of the law of the application of criminal statutes to the president makes prosecuting the president difficult—or because the department simply hasn’t made a final decision yet on how the legal principles intersect. If this is correct, Judge Carter’s opinion will likely change nothing.

To understand this point, let’s go back to the time when the Mueller report came out and much of American legal thought (myself certainly included) concluded that the report contained unambiguous evidence of obstruction of justice on Trump’s part. 

Writing on Lawfare at the time in this site’s proudest tradition of questioning accepted wisdom when doing so will enrage the most people, Jack Goldsmith raised an important problem

In a much-cited 1995 opinion by Walter Dellinger, OLC described the presidential clear statement rule as follows: “[G]eneral statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President's constitutional role.” Please read this sentence carefully. It says that general statutes—i.e., ones like the obstruction statutes that do not specifically regulate the president—“must” (not may) be read as “not applying to the president” if they do not “expressly” apply, where (i.e., if) application of the statute would “arguably” (not definitely, arguably) “limit” the president’s constitutional role. Dellinger also says: “[S]tatutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives” (emphasis added). Other OLC opinions contain similarly broad formulations of the clear statement rule.

OLC (or, in one case, the deputy attorney general) has relied on the clear statement rule in at least the four opinions listed below in the Appendix to this piece, though there are probably more. (OLC’s 1996 opus on separation of powers also expressed the rule in broad terms.) In every one of these four opinions, the Justice Department applied a version of the clear statement rule to conclude that a generally worded statute did not apply to the president. 

Now let’s leave aside for a moment the question of whether Goldsmith was right that Mueller botched his analysis of the clear statement rule and thus misinterpreted the obstruction statutes. (Goldsmith and I debated the matter at the time, also in the highest tradition of this site, and suffice it to say that I very much hope I prevailed and very much fear I did not.) That question is immaterial to the matter at hand today.

And let’s leave aside as well the question of whether OLC’s interpretation of the clear statement rule has merit—on which matter I am certain I disagree with the executive branch’s historical position, which seems to me extravagant. That question is also immaterial to the matter at hand today. 

For present purposes, the only thing that matters is that OLC, in fact, has historically taken this position. And at least until its opinions on the subject are overturned either by OLC itself or by the attorney general or the president, OLC opinions bind the executive branch—though they do not bind Judge Carter.

In other words, while the question before Judge Carter was whether it is more likely than not that Trump violated these two statutes as best interpreted, the question before the Justice Department (unless Attorney General Merrick Garland is willing to reopen decades of OLC precedent) is whether Trump may have violated either of them given that both “must be read as not applying to the President if they do not expressly apply where application would arguably limit the President's constitutional role.” While this additional interpretive baggage does not constrain Judge Carter, the Supreme Court decisions that lie beneath it do. Without the benefit of briefing on those decisions that, in the Justice Department’s view, give rise to the clear statement rule, Judge Carter is working with the statutes in a somewhat simpler form than the Justice Department confronts them.

Note that § 1512(c) is the same obstruction statute that Mueller was dealing with, and that Goldsmith and I were arguing about, and that § 371 no more by its terms applies to presidential conduct than the obstruction statute does. 

Note also that it’s certainly possible to distinguish the clear statement rule analysis in this instance from its application to obstruction cases in the Mueller report, so the need to consider it here does not fully answer the question of whether and to what degree it would impede a prosecution under either of these laws. It’s possible, after all, to argue that it’s one thing to apply the obstruction statute where, as in the firing of the FBI director or the attempt to fire the special counsel, you’re contemplating the president’s indictment based on a corrupt exercise of a core and exclusive presidential power—and quite a different matter to preclude application of federal criminal law to a blatant attempt to subvert an election, an activity that does not in any way further the president’s constitutional role. The president, after all, has no role in certifying the election under the Constitution or the Electoral Count Act—the matter in which Eastman was encouraging Trump to interfere. 

On the other hand, proponents of executive power might argue, presidents put pressure on vice presidents to carry their water all the time. Surely, criminalizing such an action would “arguably limit the President’s constitutional role.”

Again, my point here is not that this view of the law is correct. My point is only that the Justice Department accepts some version of the clear statement rule, which thus creates a hurdle for the department in contemplating a prosecution of Trump based on the shameful fact pattern that Judge Carter’s opinion lays out. It’s a hurdle that Carter himself did not confront. 

To make matters more complicated, the boundaries of the clear statement rule are genuinely contested. There is wide disagreement over both when the rule should be applied and, when applied, what conduct fits within its scope. To know how it might be affecting a possible investigation of Trump’s conduct around Jan. 6, we would have to understand both whether the department thinks the rule applies here at all, what scope it believes the rule to have if it does apply, and how it applies that scope to the conduct at issue.

Yet we actually don’t know how far the Justice Department has gone on the question of the clear statement rule. The reason is that there was almost certainly OLC work product in the context of Attorney General William Barr’s consideration of § 1512(c)(2) when Barr was responding to the Mueller report. But we don’t know how far OLC went in this work in limiting that statute’s application to presidential behavior or how its opinions were reasoned. We also don’t know whether any of those opinions may have been withdrawn by the new administration, some of whose lawyers are known to be hostile to an expansive reading of the rule. 

So if you think I’m being eccentric and finicky in thinking that this is an issue on which Justice Department lawyers will spend a lot of time before indicting a former president, consider how Mueller himself handled the issue. As Goldsmith pointed out in our exchange at the time:

One problem with these criticisms of the clear statement rule for purposes of assessing the Mueller report’s legal analysis is that the Mueller report disagrees with them. The [Mueller Report] asserts without qualification that the clear statement rule, which it described as a “requirement,” applies to the obstruction statutes. It maintains without qualification that “the Supreme Court has applied that clear-statement rule in several cases.” It also notes that the Department of Justice “has relied on this clear-statement principle to interpret certain statutes as not applying to the President at all, similar to the approach taken in Franklin.” The report doesn’t hem and haw about the legitimacy of the clear statement rule. It accepts the rule in the broad formulation set out by OLC chief Walter Dellinger in the 1995 OLC memo. And then it purports to apply the rule in a way that I criticize, and that none of the critics defend.

If this question caused Mueller to write a lengthy legal analysis before proceeding to not conclude that Trump committed a prosecutable crime, expect Garland to spend some quality time with the question before concluding that Trump did. 

To be sure, a Supreme Court ruling contrary to OLC’s view of the clear statement rule would force OLC to rethink its opinions, and an appeals court decision might well prompt reconsideration. But a district court opinion that does not confront the issue of the clear statement rule at all will not change the Justice Department’s view. And this matter is not likely to generate appellate review, since Eastman has decided not to appeal the decision. So if the Justice Department does not already have an investigation open on this matter, Judge Carter’s opinion will not force it to open one—though the moral suasion of the story itself may well affect the department’s discretionary decisions. 

All of which, in my view, has a number of important implications: 

First and easiest, the discussion above applies to Donald Trump only. It does not apply to John Eastman. To the extent the Justice Department does not have an open investigation related to Eastman’s conduct in this area, that seems like an indefensibly cautious exercise of discretion. A federal judge has now identified Eastman’s likely criminal activity in what amounts to a presidentially led insurrection—and has done so very publicly in a credibly detailed, significant opinion. It is unfathomable to me that the Justice Department would not now consider action of its own.

With respect to Trump, the department here is in a genuinely tough spot. A lot of commentators will try to make it sound easy. It isn’t easy. Perhaps the most important thing the Justice Department could do is release any OLC opinions from the Mueller report period that might exist bearing on how broadly it has interpreted the clear statement rule with respect to these statutes. More generally, an indication that the department is considering the Eastman case would go a long way to making clear to the public that it is at least thinking about the criminal implications of Trump’s conduct in this period.

In the long run, the most important public policy implications are for Congress. After writing his critique of the Mueller obstruction memo, Goldsmith went on, writing with Bob Bauer in the book After Trump: Reconstructing the Presidency, to urge Congress to fix this problem by applying these statutes clearly to presidential conduct. “It is an intolerable state of affairs for the president, Congress, and the American people not to have a clearer sense of whether and under what conditions the president can obstruct justice,” they write. Their admonition rings even truer today than it did when Bauer and Goldsmith wrote it. If not for Trump, then for future presidents of comparably low character, the problem that may be holding up the Justice Department really needs to be fixed.

The Jan. 6 committee has made some important noises about clarifying that Trump’s conduct was illegal. This is the low-hanging fruit in that effort. It shouldn’t continue to escape Congress’s attention.

Because when a federal judge writes the most devastating account of a president in American history, the public really should be able to expect criminal charges.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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