Mar 28, 2022 - Politics & Policy

Judge's "felony" statement changes little for Trump

Former President Trump is seen pumping his first after a rally in Georgia on Saturday.

Former President Trump gestures after addressing a rally in Commerce, Ga., on Saturday. Photo: Elijah Nouvelage/Bloomberg via Getty Images

A federal judge's statement that Donald Trump "more likely than not" committed felony obstruction with his attempt to overturn the 2020 election is significant — but not the same as saying the former president should be convicted of a felony.

Why it matters: Despite the fervent hopes of Trump's critics, the statement by U.S. District Judge David Carter is unlikely to materially increase the chances of a Trump indictment, informed observers told Axios.

  • Chuck Rosenberg, who served in multiple senior Justice Department roles — including as U.S. attorney for the Eastern District of Virginia — said Carter's ruling "would have little bearing on an independent prosecutorial assessment and judgment."
  • Preet Bharara, the former United States attorney for the Southern District of New York, said much the same.

The big picture: The DOJ has given no signs, so far, that Attorney General Merrick Garland is contemplating the unprecedented act of charging a former president.

  • But the eye-catching ruling by Carter, a Clinton appointee, has raised the question anew.
  • "Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021," Carter wrote.

What they're saying: "It [Judge Carter's ruling] has no actual weight with DOJ," Bharara told Axios. "But it's not a small thing that a judge has found evidence that Trump himself has committed a crime."

  • Bharara noted it's not proof beyond a reasonable doubt — but enough to invoke the "crime-fraud exception."

Between the lines: Carter ruled Trump's former lawyer, John Eastman, couldn't withhold documents from the Jan. 6 committee on the basis of attorney-client privilege, because the "crime-fraud exception" applied to those documents.

  • The law says a person can't use their lawyer's advice to commit a crime and then claim that attorney-client privilege protects the secrecy of that advice.
  • The crime-fraud exception requires a much lower standard of evidence than what's required to convict someone of a crime.
  • Prosecutors or litigators claiming the crime-fraud exception must only meet a "preponderance of the evidence" standard — which means more likely than not — rather than "beyond a reasonable doubt," which is the standard needed to convict somebody of a crime.

High-profile Democrats are already using Carter's ruling to put extra pressure on the Justice Department to investigate Trump.

  • Rep. Adam Schiff (D-Calif.), chairman of the House Intelligence Committee, told Axios that Carter's ruling is "something the Justice Department needs to pay very strong attention to."
  • "I have felt for some time now that there was good cause for the department to be investigating the former president's conduct, in particular the efforts he made with the secretary of state in Georgia," Schiff added. "To me, that is a clear demonstration of a corrupt intent and a president acting on corrupt intent."

What's next: Bharara told Axios he thinks Carter's ruling will "increase the pressure on the Justice Department to be aggressive and thorough in investigating Trump."

But another former senior DOJ official doubts it will have any effect at all.

  • "It really is an ancillary judgment in an ancillary case," Rosenberg said. "And I don't think it materially changes the calculation for the Department of Justice."

Asked about Carter's ruling, Trump spokesman Taylor Budowich told Axios: "This absurd and baseless ruling by a Clinton-appointed judge in California is just another example of how the left is weaponizing every branch of government against President Trump."

  • "The Jan. 6 Committee and related proceedings is a circus of partisanship that is exposing public officials at every level of government for their willingness to put politics ahead of the law and the Constitution."
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