WASHINGTON — A federal judge’s finding this week that former President Donald J. Trump likely committed criminal offenses in connection with his attempts to reverse the results of the 2020 election intensified scrutiny over whether the Justice Department can, should, or will attempt to charge him for the same crimes.
But the fact that a judge comes to that conclusion does not necessarily mean that a prosecution would lead to the same outcome. Here’s an explanation.
What is the case?
It’s a dispute over a subpoena issued by the House Committee investigating the January 6, 2021 attack on the Capitol by Trump supporters who tried to stop Congress and then-Vice President, Mike Pence, from certifying Joseph R. . Biden Jr.’s Electoral College win.
The subpoena instructs Chapman University to hand over emails from a former professor, John Eastman, who provided legal arguments to Mr Trump in support of his efforts to reverse the election. Mr. Eastman filed a lawsuit to block the subpoena, arguing that his communications fell under the privilege of attorney-client and attorney-work product.
What did the judge say?
In his ruling, Judge David O. Carter of the Federal District Court for the Central District of California said the Jan. 6 commission could receive certain emails under an exception to the attorney-client privilege for communications involving a crime or fraud. tried to promote because it was “more likely than not” that Mr Trump was unlawfully trying to obstruct a government proceeding.
What is the theory that Mr Trump committed crimes?
Mr. Trump publicly and privately pressured Mr. Pence to reject or postpone the vote counting of the electoral college of states where Mr. Trump falsely claimed his loss to Mr. Biden was fraudulent. The idea is that there was no legitimate basis for Mr. Pence to do this, so Mr. Trump’s pressure on him amounted to an attempt to unlawfully obstruct government proceedings and defraud the administration.
Evidence that Mr Trump has pressured Mr Pence is clearly established. The judge issued his ruling, interpreting that evidence as likely a crime at this point, not because of a breakthrough in the investigation that uncovered new, compelling evidence, but because of the timing of the subpoena proceedings: the Jan. publicly claiming the crime fraud exception applied so that it could obtain Mr Eastman’s emails, and the judge agreed.
Is the ruling a roadmap for an indictment?
Not necessarily, because the context is very different. As Judge Carter noted, “The court is only charged with settling a dispute over a handful of emails. This is not a criminal prosecution; this is not even a civil liability case.”
What is a great challenge to Mr. to prosecute Trump?
Proving Mr Trump’s state of mind – specifically that he had the requisite criminal intent.
For example, the obstruction law says that the defendant who prevented an official proceeding from committing a crime had to act “corrupt”. But what that means isn’t stated in the statute, and the Supreme Court has not given a definitive answer, posing risks and complications for prosecutors reviewing a potential case.
One possibility, said Laurie L. Levenson, a criminal justice professor at Loyola Law School in Los Angeles, is that prosecutors would have to prove that Mr. Trump was certain that Mr. Pence had no legal basis for doing what he asked. Another possibility is that prosecutors just need to prove that Mr. Trump had at least some reason to believe his conduct could be illegal and still go ahead, she said.
Why is it difficult to prove Mr Trump’s mindset?
Because, although senior government officials told him there was no factual or legal basis for Mr. Pence to unilaterally reject some states’ electoral votes or otherwise delay certification, Mr. Eastman told Mr. Trump that he interpreted the law as giving Pence legitimate authority to take such a step.
Julie O’Sullivan, a criminal justice professor at Georgetown University, said that in any criminal trial it would ultimately be up to the jury to decide what Mr Trump really believed. Unless evidence emerges that he told someone at the time that he knew what he was saying was false, she said, that will be a challenge.
“The problem with Trump is defining his state of mind when it’s so fickle,” she said. “He believes what he wants to think and it doesn’t necessarily have to be based on reality. That’s a hard argument for a jury to say he knew something specific.”
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Why wasn’t that problem an obstacle for Judge Carter?
Because the legal standard of proof is lower for deciding on the crime fraud exception applied in a subpoena dispute than for convicting someone for a crime.
Judge Carter concluded that Mr. Trump “probably knew the plan to disrupt the electoral count was illegitimate” using the “preponderance of the evidence” standard, under which a claim is considered proven if it is more likely to be true than false. . If the judge thought the evidence pointed to a 51 percent chance that Mr. Trump committed a crime and a 49 percent chance that he didn’t, that was enough to rule that the Jan. 6 panel determined e-mails. could receive emails.
What standard of proof would prosecutors face?
Prosecutors would have to convince a jury that the same evidence showed “beyond a reasonable doubt” — a much higher standard to be met — that the former president committed a crime. In addition, instead of convincing one judge of that proposal, prosecutors would have to convince all 12 jurors, because convictions must be unanimous.
“A judge making a finding to decide whether evidence should be made public is nowhere near the level of evidence you need for a criminal case,” Ms Levenson said. “‘Beyond a reasonable doubt’ means that jurors are almost certain that Trump did in fact do this — and he did it with the intent required by law.”
Several criminal justice specialists pointed to this challenge as a likely explanation for why the Justice Department would be hesitant to indict a former president and instead let the larger investigation go ahead.
“Proving something by preponderance of the evidence in front of a judge is quite different from proving it beyond a reasonable doubt to a jury,” said David Alan Sklansky, a professor of criminal justice at Stanford University. “It’s reasonable to expect that prosecutors would be particularly careful not to jump the gun when talking about indicting a former president of a crime.”