Election Law

Why the Jan. 6 committee highlights actions of 3 lawyers and an ex-law prof in DOJ referrals against Trump

  • Print.

AP Jan 6 December 2022 final meeting An image with information about the criminal referral of former President Donald Trump to the U.S. Department of Justice is displayed as the House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol has its final meeting Dec. 19. Photo by Al Drago/Bloomberg pool via the Associated Press.

Updated: Three lawyers and a law professor figure prominently in criminal referrals of former President Donald Trump issued Monday by the House select committee investigating the Jan. 6, 2021, U.S. Capitol attack.

The committee recommended charges against Trump for inciting or assisting an insurrection (for inciting Capitol rioters), obstructing an official proceeding of Congress (for trying to stop or delay Congress’ certification of the election results), conspiring to defraud the United States (through a plan to obstruct certification of the election), and conspiring to make a false statement (through a plan to submit fake electors).

The committee also asserted that there is sufficient evidence to refer former Chapman University law professor John Eastman “and certain other Trump associates” to the U.S. Department of Justice for obstructing Congress. Eastman was also involved in the conspiracies to defraud the United States and to make a false statement, the committee said.

Democratic U.S. Rep. Jamie Raskin of Maryland led the subcommittee that examined referrals. He told reporters that Eastman was the only person other than Trump referred to the DOJ, although others, including some lawyers, may be worthy of prosecution, NBC News reports.

He said there was an internal debate on whether to refer others, but the committee was stymied because some people didn’t cooperate.

“We focused on the masterminds and the ringleaders,” Raskin said.

Eastman was the author of the so-called “coup memo” that advised former Vice President Mike Pence on several scenarios in which he could give Trump a 2020 election win. He also spoke at a Stop the Steal rally shortly before the Capitol riot about “secret folders” in voting machines that could be used to cast Democratic votes.

Eastman isn’t the only lawyer mentioned in the referrals. The committee said it appears that the conspiracy to defraud the United States included other people, such as Trump lawyers Rudy Giuliani and Kenneth Chesebro and former Trump chief of staff Mark Meadows. Chesebro was also a co-conspirator in the false-statement conspiracy, according to the committee.

Also mentioned in the referrals is former DOJ official Jeffrey Clark, who “stands out as a participant in the conspiracy” to defraud the United States based on evidence suggesting that he planned to send false letters to state officials if he was elevated to acting U.S. attorney general, according to an executive summary of the committee’s final report.

The committee had gained access to Eastman’s emails, including emails that Eastman fought to keep secret, after a federal judge ruled that it was more likely than not that Eastman conspired with Trump to disrupt Congress and its certification of the 2020 presidential election results.

“The evidence shows that Eastman knew in advance of the 2020 election that Vice President Pence could not refuse to count electoral votes on Jan. 6,” the committee said in the executive summary. “In the days before Jan. 6, Eastman was warned repeatedly that his plan was illegal and ‘completely crazy’ and would ‘cause riots in the streets.’ Nonetheless, Eastman continued to assist President Trump’s pressure campaign in public and in private. … And even as the violence was playing out at the Capitol, Eastman admitted in writing that his plan violated the law but pressed for Pence to do it anyway.”

In one of those emails, Chesebro strategized about using the courts to hold up the vote count in Georgia.

According to the Jan. 6 committee’s executive summary, Chesebro was also “a central player” in the scheme to submit fake electors to the Congress and the National Archives and Records Administration. The plan was to prepare fake electors in states won by now-President Joe Biden that could be used by Pence to justify counting genuine electoral votes, the committee said.

“Despite the fact that all major election lawsuits thus far had failed, Trump and his co-conspirators in this effort, including John Eastman and Kenneth Chesebro, pressed forward with the fake elector scheme,” the committee said.

Giuliani had led the legal team seeking to overturn election results through voter fraud suits.

“How did President Trump continue to make false allegations despite all of this unequivocal information?” the committee said in its executive summary. “Trump sought out those who were not scrupulous with the facts, and were willing to be dishonest. He found a new legal team to assert claims that his existing advisers and the Justice Department had specifically informed him were false. President Trump’s new legal team, headed by Rudolph Giuliani, and their allies ultimately lost dozens of election lawsuits in federal and state courts.”

The committee also noted testimony that Giuliani “appeared to be inebriated” when he supported Trump’s inclination to declare factory on election night. And the committee said the Trump campaign’s professional staff began to view Giuliani as “unhinged.” Trump’s campaign manager, Bill Stepien, “grew so wary of the new team that he locked Giuliani out of his office,” the executive summary said.

Giuliani’s law license has been suspended in New York for false statements about election fraud, and he is fighting ethics charges in Washington, D.C.

Clark was the acting head of the DOJ’s civil division when he sought to send a letter to Georgia officials stating, without support, that the DOJ had identified significant concerns that may have affected the election outcome. Clark had hoped to send the letter after becoming the acting attorney general, but the plan was never carried out after DOJ officials threatened mass resignations.

“Trump had multiple communications with Clark in the days before Jan. 6,” the committee said, “and there is no basis to doubt that President Trump offered Clark the position of acting attorney general knowing that Clark would send the letter and others like it.”

The letter was “was transparently false, improper and illegal,” the executive summary said.

The DOJ has no obligation to act on the criminal referrals, the Washington Post reports. Daniel Richman, a professor at Columbia Law School, told the Washington Post that such referrals increase public awareness and could pressure on prosecutors.

“One of the purposes of a referral is that if you think there is a crime, it puts some accountability on the prosecutor’s decision on whether to charge or not,” Richman told the Washington Post. “It’s an accountability-shifting device.”

Often, congressional referrals don’t lead to charges, according to another story by the Washington Post. But in this case, a special counsel is already investigating whether Trump or other people interfered with the transfer of power after the election, the article points out.

“In other words, there is ample evidence that the Justice Department needs no recommendation from the committee to consider what it has learned; they’ve been doing so all along,” the article says.

See also:

ABAJournal.com: “Jan. 6 committee’s subpoena of Trump is ‘on a tight time frame’”

ABAJournal.com: “Former Chapman law prof says ex-dean knew of his work for Trump; 2 students were ‘thrilled’ to help”

ABAJournal.com: “Trump’s executive privilege bid could be hindered because of his use of campaign funds”

ABAJournal.com: “Chapman University says it didn’t authorize law prof’s representation of Trump, yet work was on server”

Updated Dec. 20 at 8:05 a.m. to report on Democratic U.S. Rep. Jamie Raskin’s comments.

Give us feedback, share a story tip or update, or report an error.