Thread by @JeffRoushPoetry

The opinion being reported, stating that Trump and John Eastman “more likely than not… conspired to obstruct the Joint Session of Congress” is fascinating. That is not a holding or finding of guilt, so this opinion doesn’t have a straight line to arrest.

storage.courtlistener.com/recap/gov.usco…

Still, I encourage everyone to read Carter’s opinion for the revealing, with documentation cited, of a powerful factual outline. For those screaming for Garland to “do something,” I believe he is building the case. Meanwhile, an outline of the opinion (citations to page numbers):

The opinion begins with a discussion of Trump’s election fraud claims. Of particular note: a January 2, 2021 briefing “urging several hundred state legislators from states won by President Biden to ‘decertify’ electors,” and a breakdown of his efforts to pressure Georgia. (3-4)

The opinion goes over additional steps Trump considered, including elevating Jeffrey Clark to acting Attorney General, an idea that brought enough outcry that he backed off. It goes on to lay out evidence and expert opinions that this election was secure and reliable. (5)

From here, the opinion moves to Trump’s efforts, with the help of Eastman, to disrupt the electoral count by having Mike Pence refuse to certify results from seven states: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin. (6)

On January 5, Eastman started a meeting with Pence by saying, “I’m here asking you to reject the electors.” Absent that, he wanted Pence to delay the count. Eastman conceded this would be illegal, but kept pushing. Trump also tweeted to pressure Pence despite that concession. (7)

The opinion gives timelines for the attack on the Capitol: Eastman declaring stopping the count as the key to a “self-governing republic”; Trump and Giuliani praising Eastman and his idea to stop the electoral count; Pence rejecting the plan;

Trump telling supporters to go to the Capitol; and the mob invading and overwhelming the Capitol building (8-9). Meadows learned and informed Trump of the violence at 2:02, but Trump tweeted at 2:24 to blame Pence for his lack of courage. (9-10)

As members of Congress, staff, and workers fled for safety, Eastman emailed back and forth with Pence’s counsel into the night to blame Pence for what was happening and urge him to adjourn, to “consider one more relatively minor violation.” (10-11)

When the House select committee subpoenaed Eastman, he refused to produce any documents, and asserted Fifth Amendment privilege against production—and 146 times during his testimony. (12)

When Eastman refused to produce documents, the Committee subpoenaed his employer, Chapman University. Bluster, negotiation, etc. commenced, and we’re down to claims of privilege on 111 documents. (13-14)

I will spare the analysis of how attorney-client privilege and the work product doctrine work. I love this stuff, but relevant here is the analysis of whether the crime-fraud exception applies to the 11 documents that have any argument for being privileged.

In effect, documents both relate to and further a client’s committing of a crime. The opinion finds it more likely than not that Trump and Eastman attempted to obstruct Congress’ proceeding to count the votes (31-36) and conspired to defraud the United States (36-40).

That analysis only brings in one more document, so Eastman must produce 101 of the 111 documents he wanted to withhold. (44)

In the end, the opinion reiterates a few critical points. Privilege claims still matter, and this ruling both protects the law and confirms that lawyers can’t use it to shield everything. Legal theories have real consequences and can’t be allowed to run in disregard to the

impact they have on our system of democracy. And while accountability matters, this case isn’t what will provide it. Still, it’s another step forward, and gives an important blueprint for what I hope will become prosecution of Trump and his enablers.