Eastman Emails Could Provide 'Smoking Gun' Evidence Against Donald Trump

Following the explosive claims made by the House Select Committee investigating the January 6 attack, prosecutors may soon have the "smoking gun" evidence needed to charge Donald Trump over his attempts to overturn the 2020 election, experts have suggested.

The revelations detailed in court filings were the first time that the panel laid out its case that the former president and his team allegedly engaged in a "criminal conspiracy" before and after the last election.

The allegations were revealed in documents arguing that Trump's lawyer, John Eastman, should not be allowed to refuse to comply with a subpoena issued to him by the House Select Committee.

Eastman said he is withholding hundreds of emails requested by the panel investigating the January 6 attack while citing attorney-client privilege, an extremely well protected privilege which allows lawyers to refuse to disclose confidential communications they had with their client.

However, the January 6 panel argues that such assertions are invalid under the crime-fraud exception, meaning the privilege cannot be cited if the lawyer and his client are attempting to cover up or engage in a crime.

However, despite laying out a number of ways in which Trump and his team are alleged to have illegally tried to obstruct Congress' count of electoral votes—and "defraud" the American people by repeatedly pushing false claims the election was rigged—the House Select Committee is not conducting a criminal investigation.

For criminal charges to be brought forward, the panel must refer its evidence to the Department of Justice, who will then decide whether to seek prosecution against the former president or not.

There is no guarantee that the panel will pass on any evidence to the DoJ. Even if they do, legal experts have said they will still need the documents they are requesting from Eastman with the subpoena to provide substantial evidence Trump was willingly committing a crime.

"For any type of obstruction or fraud prosecution, the Department of Justice would have to prove Trump's knowledge and intent. Basically, they would have to get inside the former President's head," Neama Rahmani, former federal prosecutor and president of West Coast Trial Lawyers, told Newsweek.

"An innocent or even negligent misrepresentation is not enough. That's where Eastman comes in.

"If the January 6 committee can show that Trump knew he lost the election, but he attempted to overturn the results anyway, you have enough for a grand jury indictment," Rahmani added. "Witness testimony is good, and they have a lot of that already, but the best evidence is emails or text messages that cannot be refuted.

"That's why the committee is so eager to get Eastman's emails to and from Trump. That is the type of smoking gun evidence the Department of Justice would need to consider prosecuting a former President."

The damming claims made by the panel were detailed in emails sent by Eastman to Mike Pence's attorney Greg Jacob while he and Trump and were trying to persuade the then Vice President to prevent the votes from being certified in Congress in his purely ceremonial role as presiding officer of the Senate.

In one email, sent soon after the mob of Trump supporters stormed the Capitol, Eastman suggested to Jacob: "I implore you to consider one more relatively minor violation [of the Electoral Count Act] and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here."

In the court filing, the committee suggested that the email shows Eastman "knew what he was proposing would violate the law, but he nonetheless urged the vice president to take those actions."

Barbara McQuade, a University of Michigan law professor and former U.S attorney for the Eastern District of Michigan, suggested the panel may be successful having Eastman's attorney-client privilege thrown out because the evidence they have gathered alleged Trump conspiring to commit a crime and that he knew his claims of voter fraud were false.

"The legal standard for challenging the attorney-client privilege that applies here is much lower than the legal standard for charging someone with a crime, but the evidence is most certainly enough to serve as a predicate to open a criminal investigation," McQuade told Newsweek.

"To overcome the privilege, the legal standard is whether the evidence provides a good-faith belief that a crime may have been committed."

Former Los Angeles County prosecutor and criminal defense attorney Josh Ritter said that while the court listings submitted by the panel are damaging, there are still "several significant steps" needed before a criminal indictment can be filed against Trump.

Ritter told Newsweek that the DoJ is in a "difficult political bind" with regards to filing criminal charges against the former president, but that could change if the January 6 panel refers its evidence.

Ritter added that the panel has a "tough road ahead" to get the attorney-client privilege cited by Eastman waived and gain the additional evidence they may need.

"I do not think the evidence that we have seen thus far arises to the level of a smoking gun," Ritter said.

"We must remember that we all enjoy a wide amount of latitude when it comes to our freedom of speech. That is especially so when it comes to political rhetoric.

"Trump and his allies may have been making unfounded allegations about 'stolen elections' in the face of significant evidence indicating otherwise, but that is a wide margin away from being actual criminal fraud as alleged by the panel."

In a previous statement to Newsweek, Charles Burnham, lawyer for Eastman, said the attorney has a responsibility to protect client confidences, even at "great personal risk and expense."

"Because this is a civil matter, Dr. Eastman will not have the benefit of the Constitutional protections normally afforded to those accused by their government of criminal conduct," Burnham said.

"Nonetheless, we look forward to responding in due course."

trump election crime
Donald Trump speaks during a rally in El Paso, Texas on February 11, 2019. Prosecutors may soon have the “smoking gun” evidence from Trump's lawyer John Eastman needed to charge the former president, experts say. NICHOLAS KAMM/AFP/Getty Images

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