Editor’s Note: Norman Eisen was former President Barack Obama’s “ethics czar” from 2009 to 2011 and US ambassador to the Czech Republic from 2011 to 2014. Fred Wertheimer is president of Democracy 21, a nonpartisan, non-profit organization that works to strengthen US democracy. The views expressed in this commentary are their own. Read more opinion articles on CNN.
The resignation of two Manhattan prosecutors for their boss’s failure to charge former President Donald Trump over potential financial crimes last month has reignited debate over whether he will ever be held accountable for his alleged misdeeds.
That matters not only looking back but also going forward because perhaps his most notorious outrage – the big lie that he won the 2020 presidential election – has not halted. It continues to drive hundreds of voter suppression and election sabotage bills and anti-democratic candidates across the country. And it has captured and corrupted a significant faction of the Republican Party.
Thankfully, Judge David Carter’s decision on Monday, finding Trump “more likely than not” committed crimes, sets out a road map for finally imposing consequences for the big lie. It does so by tackling the thorniest legal issues regarding Trump, his enablers and the events in and around January 6, 2021 – and showing how they can be addressed by prosecutors.
Perhaps the most daunting of these is the question of Trump’s criminal intent. How can a prosecutor prove what Trump was thinking when he publicly claims good faith but refuses to testify, when those closest to him also resist or are hostile witnesses and when he does not use the prosecutor’s best friend, email?
Intent is where the Manhattan District Attorney’s financial case seemed to come a cropper. Whatever you think of the DA’s failure to prosecute financial crime, and we strongly disagreed, Carter offered a powerful array of evidence about democracy crimes.
Carter applies precedent to show that “a person does not need to know their actions are wrong to break the law.” Trump exceeded this threshold because he likely knew that right-wing lawyer John Eastman’s plan to throw out electoral votes was illegal. Carter cites the January 6 House select committee’s carefully compiled evidence that Trump was advised publicly and privately numerous times that there was absolutely no evidence of significant electoral fraud.
As the opinion notes, Trump’s calls to Georgia Secretary of State Brad Raffensperger in which he famously asked the secretary to “give (him) a break” and “find 11,780 votes” (one vote more than Biden’s margin of victory in that state) reveal the former President’s goal: not to undertake any legitimate investigation, but simply to overturn the election. This is strong evidence of a “corrupt mindset,” and it leads Carter to an eminently simple conclusion: “(t)he illegality of the plan was obvious.”
By marshaling both private conversations and public writings about the plan to overturn the election’s lack of evidentiary basis, Carter shows that prosecutors have at their disposal a wide array of forms of evidence probative of the former President’s intent. Perhaps no one on earth has developed a lengthier evidentiary record than Trump – and prosecutors can unlock that record to hold him accountable. This effectively contradicts those who say intent will be hard to prove and is a useful signpost for the upcoming January 6 committee hearings and report – and for when the Justice Department receives the committee’s full evidence and any criminal referrals.
The judge’s analysis does not stop only at tackling the knotty issue of intent. He goes on to tackle the charge of obstruction of an official proceeding in Congress. This can be hard to prove (having worked on this issue during Trump’s first impeachment, one of us knows this particularly well). But the judge’s opinion shows the way.
Carter joins other federal judges in ruling that the congressional electoral count is an “official proceeding,” and he rules that Trump likely attempted to obstruct or impede that official proceeding under Title 18 Section 1512 of the US Code. By synthesizing evidence from Twitter, the President’s private schedule, remarks at the Ellipse rally and other sources, Carter traces Eastman and Trump’s activity in the days leading up to January 6 and finds that these actions “more likely than not” constitute obstruction.
The judge also mapped another important possible crime: conspiracy to defraud the US under Title 18 Section 371. He did so as to Eastman and Trump, but in terms that by implication could apply broadly to many others in their circle. Here, the opinion notes that “(l)eading small meetings in the heart of the White House implies an agreement between the President and Dr. Eastman and a shared goal of advancing the electoral count plan.”
The possible implications for the rest of Trump’s enablers are obvious. Eastman is certainly not the only person alleged to have participated in calls or meetings relating to overturning the election. Tremors must have gone down the sp
Opinion: Finally, a road map to hold Trump accountable
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