We sit on a historic cusp of an American President who will likely next week be criminally indicted. I’m not sure many realize how many courts have already suggested he is guilty of many crimes. Here’s my list.
Judge #1: Magistrate Judge Bruce Reinhart: Determined there is probable cause that Donald Trump violated the Espionage Act, unlawfully removed or destroyed government documents, and obstructed justice. The context was an order by Magistrate Judge Bruce Reinhart to search Trump’s property at Mar-a-Lago. To issue such a search warrant the judge must find that there is probable cause evidence for specific crimes enumerated on the warrant will be found. The search resulted in the seizure of numerous Top Secret items, to include some at the “TS/SCI” enhanced level of Top Secret for exceptionally sensitive information.
Judge #2: Judge David Carter: A completely different judge has determined that it is likely Donald Trump committed two major felonies in his effort to stay in power after losing the election. The context for this determination was a dispute between John Eastman and the January 6th Committee. Eastman is an attorney who was the architect of the plan to convince Mike Pence to unilaterally throw out enough electoral college votes to give the election to Trump. The Committee subpoenaed his emails and Eastman resisted, claiming Trump was his client and the attorney/client privilege protected the emails. The Committee countered that the attorney/client privilege did not apply because the emails were in the furtherance of a crime or fraud.
Thus, Judge David Carter had to decide, to the preponderance of evidence standard (more likely than not), whether the crime/fraud exception to attorney/client privilege applied. The judge decided the crime/fraud exception did apply, ruling it likely that Donald Trump attempted to obstruct an official proceeding and that Trump engaged in a conspiracy against the United States. The judge was quite direct in these conclusions.
“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 January 6, 2021 . . . Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.”
The relevant criminal statutes, 18 U.S.C. § 1512(c)(2) and 18 U.S.C. § 371, carry maximum sentences of 20 years and 5 years respectively.
Judge #3: Judge Beryl Howell: Today similarly decided the crime/fraud exception to otherwise attorney/client privileged communications. Details of this decision, and the decision itself, remain under seal because they relate to grand jury proceedings. At issue are unspecified communications between Trump Attorney Evan Corcoran and Trump. The court ruled at least partially in favor of the DOJ and found that crime/fraud exception applied, requiring Corcoran to testify. As with the Eastman case above that means the judge found it likely that the communications were in the furtherance of a crime or fraud.
OTHER NOTABLE JUDICIAL RULINGS
-The United States Court of Appeals found “There is a direct linkage between the former President,” and the events of January 6th. The context of this determination was Trump’s resistance to the January 6th Committee receiving documents from the National Archive. Trump asserted executive privilege, which the Court of Appeals rejected. Along the way, the three judge panel walked through the events of January 6th in a way suggesting Trump was responsible. In the words of the unanimous decision:
“The January 6th Committee has also demonstrated a sound factual predicate for requesting these presidential documents specifically. There is a direct linkage between the former President and the events of the day.”
-Judge Amit Mehta ruled that it has been plausibly alleged that Donald Trump aided and abetted in assaults on police and that Trump conspired with seditionists to violently attack the Capitol. The context involves lawsuits filed by members of Congress, and several Capitol Police Officers, seeking to hold Trump liable for damages they suffered on January 6th. The allegations include that Trump violated the Ku Klux Klan Act by conspiring with the Proud Boys, Oath Keepers and others to violently assault the nation’s capitol. Trump asked the court to dismiss the charges on grounds no plausible facts were alleged supporting the allegations against him.
Judge Amit Mehta disagreed, holding that plaintiffs plausibly alleged that Trump conspired with seditionists and aided and abetted in the beatings of police officers. Once again, the judge was quite direct in his conclusions.
“Plaintiffs have plausibly alleged that the President was of one mind with organized groups and others to participate in violent and unlawful acts to impede the Certification . . . Plaintiffs have stated a claim for common law assault based on an aiding-and-abetting theory of liability . . . The Plaintiffs allege facts sufficient that a reasonable jury could infer that the President of the United States aided and abetted the assaults and batteries against them.”
-New York Judge Arthur Engoron determined that the New York Attorney General’s lawsuit against Trump for massive fraud was likely to succeed on the merits and that this justified removing control of the Trump Organization from Donald Trump and giving it to the State. After a three year investigation, that included deposing Trump personally (where he pled the 5th), the New York Attorney General, acting for the State of New York, sued the Trump Organization, Donald Trump personally, and various members of his family for fraud. The lawsuit alleged years of persistent and rampant corporate fraud. The numerous schemes generally inflated property worth for purposes of serving as collateral for loans (bank fraud) while undervaluing often the same properties for tax purposes (tax fraud).
Unsurprisingly, a company facing such a threat could begin transferring business operations and assets out of state, where New York could no longer reach it.
However, New York law permits the NYAG to apply for an injunction, such as the judge approved today, blocking the corporation from doing that.
The legal standard for granting such an injunction is a fairly straightforward two prong test:
- Has the state demonstrated that it is likely to succeed on the merits?
- Has the state demonstrated that equities (basically fairness) weigh in its favor.
This is where I found the decision most interesting. In applying this standard the judge used language suggesting his belief that the defendants are guilty. The judge didn’t use language suggesting the NYAG is likely to prevail. Rather, the judge used language suggesting the NYAG will prevail. For example:
“defendants have failed to submit an iota of evidence, or an affidavit from anyone with personal knowledge, rebutting OAG’s comprehensive demonstration of persistent fraud.” [note: “OAG” stands for “Office of the Attorney General”]
Consider this, appearing shortly after:
“for present purposes, the Court need not detail every instance of fraud found in the record, the following examples are particularly compelling.”
However, my favorite piece of evidence for fraud is that Trump in his deposition pled the 5th. In a civil case that is nearly tantamount to an admission of guilt. The court treated it as such:
“this Court is permitted, and is here persuaded, to draw a negative inference from Mr. Trump’s invocation of his Fifth Amendment right against self-incrimination more than 400 times in response to questions posed to him during his deposition.”
A whole lot of judges have already issued rulings strongly suggesting that Donald Trump is a criminal.
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