{"id":3166,"date":"2022-03-30T17:58:22","date_gmt":"2022-03-30T17:58:22","guid":{"rendered":"https:\/\/linksus.net\/why-a-ruling-declaring-trump-likely-broke-laws-may-not-mean-he-will-be-prosecuted-the-new-york-times\/"},"modified":"2022-03-30T17:58:22","modified_gmt":"2022-03-30T17:58:22","slug":"why-a-ruling-declaring-trump-likely-broke-laws-may-not-mean-he-will-be-prosecuted-the-new-york-times","status":"publish","type":"post","link":"https:\/\/linksus2.linksus.net\/index.php\/2022\/03\/30\/why-a-ruling-declaring-trump-likely-broke-laws-may-not-mean-he-will-be-prosecuted-the-new-york-times\/","title":{"rendered":"Why a Ruling Declaring Trump 'Likely' Broke Laws May Not Mean He Will Be Prosecuted – The New York Times"},"content":{"rendered":"

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A high-profile ruling about a subpoena from the House committee investigating the Jan. 6 attack turned on a lower standard of proof than a criminal trial.
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By <\/span>Charlie Savage<\/a><\/span>
WASHINGTON \u2014 A federal judge\u2019s conclusion this week<\/a> that former President Donald J. Trump likely committed felonies related to his efforts to overturn the results of the 2020 election intensified scrutiny on the question of whether the Justice Department can, should or will try to charge him with the same crimes.
But the fact that a judge reached that conclusion does not necessarily mean that a prosecution would arrive at the same outcome. Here is an explanation.
It is a dispute over a subpoena issued by the House committee that is investigating the Jan. 6, 2021, attack on the Capitol by Trump supporters who were seeking to stop Congress and the vice president at the time, Mike Pence, from certifying Joseph R. Biden Jr.\u2019s Electoral College victory.
The subpoena instructs Chapman University to turn over emails from a former professor, John Eastman, who supplied legal arguments to Mr. Trump supporting his attempts to overturn the election. Mr. Eastman filed a lawsuit to block the subpoena, arguing that his messages were covered by attorney-client and attorney work-product privilege.
In his ruling<\/a>, Judge David O. Carter of the Federal District Court for the Central District of California said the Jan. 6 committee could get certain emails under an exception to attorney-client privilege for communications that sought to further a crime or fraud because it was \u201cmore likely than not\u201d that Mr. Trump unlawfully sought to obstruct a government proceeding.
Mr. Trump, in public and in private, pressured Mr. Pence to reject or delay counting the Electoral College votes of states where Mr. Trump baselessly claimed that his loss to Mr. Biden had been fraudulent. The idea is that there was no legitimate basis for Mr. Pence to do so, so Mr. Trump\u2019s pressure on him amounted to an attempt to unlawfully obstruct a government proceeding and defraud the government.
The evidence that Mr. Trump pressured Mr. Pence has been well established. The judge issued his ruling interpreting that evidence as likely amounting to a crime at this moment not because of a breakthrough in the investigation that uncovered new, conclusive evidence, but because of the timing of the subpoena lawsuit: The Jan. 6 committee needed to publicly argue that the crime-fraud exception applied so it could obtain Mr. Eastman\u2019s emails, and the judge agreed.
Not necessarily, because the context is very different. As Judge Carter noted: \u201cThe court is tasked only with deciding a dispute over a handful of emails. This is not a criminal prosecution; this is not even a civil liability suit.\u201d
Proving Mr. Trump\u2019s state of mind \u2014 specifically, that he had the requisite criminal intent.
The obstruction statute, for example, says that for the defendant\u2019s action impeding an official proceeding to be a crime, he had to act \u201ccorruptly.\u201d But what that means is not detailed in the statute, and the Supreme Court has not definitively offered an answer, raising risks and complications for prosecutors evaluating a potential case.
One possibility, said Laurie L. Levenson<\/a>, a criminal law professor at Loyola Law School in Los Angeles, is that prosecutors would have to prove that Mr. Trump knew for sure that Mr. Pence had no lawful basis to do what he was asking. Another possibility is that prosecutors would need to prove only that Mr. Trump had at least some reason to believe that his conduct might be unlawful and proceeded anyway, she said.
Because even though senior government officials were telling him there was no factual or legal basis for Mr. Pence to unilaterally reject some states\u2019 electoral votes or otherwise slow down the certification, Mr. Eastman told Mr. Trump that he interpreted the law as giving Mr. Pence legitimate authority to take such a step.
Julie O\u2019Sullivan<\/a>, a Georgetown University criminal law professor, said in any criminal trial, it would ultimately be up to the jury to decide what Mr. Trump truly believed. Unless evidence emerges that he told someone at the time that he knew what he was saying was false, she said, that will be a challenge.
\u201cThe problem with Trump is defining his state of mind when it is so changeable,\u201d she said. \u201cHe believes whatever he wants to think and it doesn\u2019t necessarily have to be grounded in reality. That\u2019s a tough argument to a jury, to say he knew any particular thing.\u201d
Trump\u2019s tweet. <\/strong>Weeks before the Jan 6 attack, President Donald J. Trump sent a tweet that ended \u201cBe there, will be wild!\u201d Federal prosecutors and congressional investigators have gathered growing evidence of how this tweet was a crucial call to action<\/a>\u00a0for militants in the riot.<\/span>
Judge says Trump likely committed crimes. <\/strong>In a court filing in a civil case, the Jan. 6 House committee laid out the crimes it believed Mr. Trump might have committed. The federal judge assigned to the case ruled that Mr. Trump most likely committed felonies<\/a>\u00a0in trying to overturn the 2020 election.<\/span>
Virginia Thomas\u2019s text messages. <\/strong>In the weeks before the Capitol riot, Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, sent several texts<\/a>\u00a0imploring Mark Meadows, President Trump\u2019s chief of staff, to take steps to overturn the election.\u00a0The Jan. 6 House committee is likely to seek an interview with Ms. <\/a>Thomas<\/a>, said those familiar with the matter.<\/span>
Contempt charges. <\/strong>The Jan. 6 House committee voted to recommend criminal contempt of Congress charges<\/a>\u00a0against Peter Navarro, a former White House adviser, and Dan Scavino Jr., a former deputy chief of staff, for refusing to comply with its subpoenas.<\/span>
Because the legal standard of proof is lower for deciding the crime-fraud exception applied in a subpoena dispute than it is for convicting someone of a crime.
Judge Carter concluded that Mr. Trump \u201clikely knew that the plan to disrupt the electoral count was wrongful\u201d using the \u201cpreponderance of the evidence\u201d standard, under which a claim is considered established if it is more likely true than false. If the judge thought the evidence pointed to a 51 percent chance that Mr. Trump committed a crime and a 49 percent chance that he did not, that was sufficient to rule that the Jan. 6 panel could get certain emails.
Prosecutors would need to persuade a jury that the same evidence proved \u201cbeyond a reasonable doubt\u201d \u2014 a much higher standard to meet \u2014 that the former president committed a crime. Moreover, rather than persuading one judge of that proposition, prosecutors would need to convince all 12 members of a jury, because guilty verdicts must be unanimous.
\u201cA judge making a finding to decide whether evidence has to be disclosed is nowhere near the level of proof that you\u2019ll need for a criminal case,\u201d Ms. Levenson said. \u201c\u2018Beyond a reasonable doubt\u2019 means that jurors are almost positive that, in fact, Trump did this \u2014 and he did it with the intent required by the law.\u201d
Several legal specialists in criminal law pointed to this challenge as a likely explanation for why the Justice Department might hesitate to charge a former president and is instead allowing the larger investigation to continue.
\u201cProving something by preponderance of the evidence to a judge is a very different thing than proving it beyond a reasonable doubt to a jury,\u201d said David Alan Sklansky<\/a>, a Stanford University criminal law professor. \u201cIt\u2019s reasonable to expect that prosecutors would be particularly careful not to jump the gun when you\u2019re talking about charging a former president with a crime.\u201d
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