Janine Jackson interviewed legal expert Marjorie Cohn for the April 8, 2022, episode of CounterSpin about prosecuting Donald Trump. This is a lightly edited transcript.
Janine Jackson: When a judge, having seen confidential documents, declares the former president likely committed federal crimes in an unprecedented effort to overturn a democratic election, how would you, as a media outlet, alert readers to the remarkable development? If you’re USA Today, you choose the headline “The January 6 Committee Got a Boost From a Ruling on a Confidential Memo,” and describe the judge’s ruling as, first of all, “a win for the committee.”
Some media’s insistence on treating the crisis represented by the January 6 coup attempt and the ongoing “Stop the Steal” disinformation campaign as a Beltway spat is bizarre and disheartening. Fortunately, many others concur strongly with the thought expressed by US District Judge David Carter in that ruling: “If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and a former president of the National Lawyers Guild. She’s author of a number of books, including Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She joins us by phone from San Diego. Welcome back to CounterSpin, Marjorie Cohn.
Marjorie Cohn: Thanks for having me, Janine.
JJ: OK. This 44-page ruling from a federal judge, David Carter, was about whether Donald Trump’s lawyer, John Eastman—an architect of January 6—had to hand over documents to the House committee investigating it.
Eastman said they were protected by attorney/client privilege, and it was in explaining why they should not be that Judge Carter provided what I’ve seen you and others describe as a roadmap to bringing charges against Trump, and potentially others as well. Is that correct?
MC: That is correct, Janine. Eastman was claiming that he and Trump share the attorney/client privilege, and also what is called the work-product doctrine, which would shield them—concealing, basically, communications that had to do with criminal activity on January 6. Well, there is a crime/fraud exception to both the work-product doctrine and the attorney/client privilege, and that basically says that if the communications are made in furtherance of illegality, illegal activity, then the attorney/client privilege and the work-product doctrine don’t apply, and he has to turn over the documents. And in discussing that issue, Judge Carter found that it was more likely than not that Trump attempted obstruction of an official proceeding, and that Trump and John Eastman, his lawyer, committed conspiracy to defraud the United States. Those are two federal crimes.
And even though Judge Carter was dealing with a civil case, as you said, about whether John Eastman should turn over documents to the January 6 Committee of the House of Representatives, his finding that it was more likely than not that Trump committed these two federal crimes is basically equivalent to a finding of probable cause in a criminal case, probable cause to support an arrest.
So my feeling is that Judge Carter’s 44-page opinion provides a roadmap for the Department of Justice to bring criminal charges against Trump and Eastman. (Although the January 6 Committee can make a criminal referral to the Department of Justice, it can’t actually bring criminal charges, and there is a federal grand jury that is investigating the January 6 events and possible culprits.) And that the Department of Justice could go to the grand jury and say, “We want an indictment of Trump for these two federal crimes.”
JJ: I can see folks maybe getting hung up on the phrase from the ruling, “more likely than not,” Trump is “more likely than not” to have committed these federal crimes. But that has a particular legal meaning; that’s all he can say at this point, isn’t it?
MC: It is. In a civil case, the burden of proof is a preponderance of the evidence, or more likely than not, or 51%. In a criminal case, the prosecutor has the burden of proving guilt beyond a reasonable doubt, but that’s once you get to the trial stage. In a criminal case, in order to have a lawful arrest or an indictment, the prosecutor has to show probable cause to believe that the suspect committed the crime, and probable cause is basically equivalent to more likely than not, which was what Judge Carter found. And so there is plenty of evidence for the Department of Justice to request an indictment for the arrest of Trump and Eastman for federal crimes in a criminal case, basically.
JJ: Let me draw you out a little bit on the obstruction of an official proceeding, because one of the things that’s interesting about that charge is that it requires corruption, not just that the individual “obstructed, influenced or impeded or attempted to” an official proceeding, but that they did so corruptly, and I think that hangs a lot of people up because they say, “You don’t know what their intent was. You can’t prove corruption there.” But Carter says, yeah, we have other things that we can line up to indicate what he called a “corrupt mindset.”
MC: Yes, and keep in mind that in a criminal case, it’s rare that the defendant says, “I had a guilty mind,” “I acted corruptly,” “I intended to kill the victim,” and that would be direct evidence. But there is a thing called circumstantial evidence, and that is just as strong and reliable in a criminal case as direct evidence.
And what Carter concluded, basically, was that Trump knew that what he was doing was illegal. And Carter cited many, many opinions of federal court judges finding that there was no voter fraud. He cited the agency who is tasked with determining whether there is voter fraud, who concluded, no, there was no voter fraud.
And Trump certainly knew that the plan was illegal. This is Eastman’s plan to get Mike Pence to either reject the electors or delay the vote count. That was the plan that constituted obstruction or attempted obstruction of an official proceeding.
And then the conspiracy to defraud the United States was the agreement between Trump and Eastman to carry out this nefarious plan, which Judge Carter said both Trump and Eastman knew was illegal.
JJ: I think he also cited that call to Georgia Secretary of State Raffensperger, when Trump asked him to “find” votes, as showing that he was more interested in overturning the election, and not actually investigating it.
I’ve gotten frustrated by a tone in some reporting that suggests that we’re probably never going to get anything to stick with Donald Trump, and so we shouldn’t get excited about it. And I guess the implication is, without an assured conviction, the whole thing is a waste of time or a distraction or, worst of all, it “looks partisan.”
But, gosh, if this system can’t determine Donald Trump guilty of anything at all, then I would think exploring why not would be journalists’ job No. 1.
Marjorie Cohn: “Bringing criminal charges when there is probable cause to believe that Trump committed federal crimes is what the law requires.”
MC: I agree with you, Janine. And I think perhaps 30% of the people in this country are going to scream and yell if Trump is charged with a criminal offense, but the majority of people are in favor of the rule of law and holding Trump’s feet to the fire, and the evidence of his criminal wrongdoing is legion. On Thursday, the attorney general of New York asked a state judge to hold Trump in civil contempt for failing to comply with a court order in an investigation about whether the Trump Organization unlawfully falsified the value of assets for financial gain.
And Trump’s wrongdoing is out there for all to see. It has been documented for more than a year, really, and bringing criminal charges when there is probable cause to believe that Trump committed federal crimes is what the law requires.
When I was a criminal defense attorney, I would have loved to hear people say, “Well, the prosecutor isn’t assured of a conviction, so shouldn’t bring criminal charges against your client.” That’s not how our system works. The criminal justice system—if it is, indeed, just—means that when there’s probable cause that a crime has been committed, then the prosecutor should bring criminal charges. And then it’s up to a jury to decide whether that defendant is guilty beyond a reasonable doubt.
JJ: Do you have any thoughts for journalists who are going to be taking this up? We didn’t even get to the however many minutes of tape that no one can find, or the papers taken out of the White House or shoved down the toilet. And yet it doesn’t seem to be building to a story of the scale that it needs to, at least from my view.
It’s not that it’s not being covered. There are stories here and stories there and stories virtually every day, but I’m not sure that it’s getting the push, given the gravity, maybe, is the word, that it needs. But let me ask you: advice to journalists who are going to be covering this one way or another over the next weeks, months?
MC: I would pay attention to the White House telephone logs that the Select Committee has received, showing a gap of seven hours and 37 minutes on January 6, which was the time that the pro-Trump mob stormed the Capitol and committed the attempted insurrection. Trump initiated at least one call on a White House phone that was not recorded on the call log.
Keep in mind that Richard Nixon resigned in infamy because of 18 minutes missing from the White House tapes about the Watergate scandal. And it may well be that the bigger story here is Trump’s coverup of his criminal activity, just like during the Watergate scandal.
I think it’s important to pay attention to what the Select Committee uncovers. I think they’ve called or interviewed 800 witnesses, most recently Ivanka Trump and Jared Kushner. We’ll see what happens.
JJ: All right, then. We’ve been speaking with Marjorie Cohn. She’s professor emerita at Thomas Jefferson School of Law, and author of, among other titles, Drones and Targeted Killing: Legal, Moral and Geopolitical Issues, from Olive Branch Press. You can find her work on Truthout, and you can also keep up with it at MarjorieCohn.com. Marjorie Cohn, thank you so much for joining us this week on CounterSpin.
MC: Thanks for having me, Janine.
Fair (rightly) pushing for the arrest of Trump but deathly silent on all things Putin. Pretty fucking shameful.
Where is Janine on Hunter or the big guy?
Yup, Trump needs to be indicted, tried and hopefully jailed. His punk son Don Jr too. Putin ? ‘Fair’ ? ? Well they doesn’t write or take a position relative to that thug, particularly since the invasion and war broke out. Indeed, reading between the lines, Fair implies through numerous articles Ukraine somehow had it coming to them. Go figure and perhaps follow the money. Hunter has been ‘protected’ by the MSM for years now. Fair doesn’t go there either for whatever reason.
There is a full disk drive of data and a business partner available for FAIR. They don’t explore Hunter or the Big Guy because he’s one of their own. They are not for fairness
Total. Fucking. Bullshit.
Hunter Biden has never been a part of the government. If he wants to cash in on the Biden name, and a private business is willing to pay him, oh well.
Who is the Big Guy who gets 10%?
You probably don’t read anything outside of your bubble. Read this. Who is the Big Guy in a documented email?
Joe took money from the Chinese. He’s corrupt in a way that is unsafe for our country. Say what you want about Trump. This is FAR worse.
https://nypost.com/2021/11/29/joe-biden-expected-10-percent-cut-in-deal-with-a-chinese-giant/
Who do you suggest arrests Putin?
If Trump really is as criminal as he looks he’s probably got people threatening witnesses and that whole business.
Tim wrote:
You probably don’t read anything outside of your bubble. Read this. Who is the Big Guy in a documented email?
Joe took money from the Chinese. He’s corrupt in a way that is unsafe for our country. Say what you want about Trump. This is FAR worse.
https://nypost.com/2021/11/29/joe-biden-expected-10-percent-cut-in-deal-with-a-chinese-giant/
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Bullshit.
1. The deal never went down, so it seems kinda ridiculous to harp on it. Or at the very least, super-hypocritical: You know how many Trump deals his family got involved in while he was sitting in White House?
2. The same “documented” subsequent emails also say Joe Biden was against the deal.
3. Joe Biden was a private citizen at the time and could do business with pretty much whomever he wanted. When Trump shook down everybody as a private businessman and bragged about it, you cultist couldn’t kiss his ass hard enough– “that means he’s smart!” But Joe Biden, a private citizen at the time, has other private citizen relatives who trade on the Biden name and suddenly it’s worse than Trump trying to effectuate a coup. Fucking bullshit.
None of that income was reported. Biden has lied about all of this. You don’t think the Chinese know that? Naive.
You’re making this part up.
What income is there to report from a deal that didn’t happen? And Biden released all his taxes showing where his income came from. Did your cult leader do the same? Even after promising he would?
How has Biden lied about any of this? It’s all shit about his son, who is in no way involved in government.
I’m sure the Chinese know that. Just as I’m sure that they can’t have leverage over someone for a deal that didn’t fucking happen. I’m also sure all this Hunter’s laptop fixation is regular, run-of-the-mill political shenanigans that every connected family member of both parties engages in if they wanna make some money and it’s nothing like trying to have a coup. Sorry. It’s not in the same ballpark; it’s not even in the same fucking league.
You really don’t talk outside your bubble. Just because Joe didn’t report income doesn’t say he didn’t receive it. That’s the illegal part. He’s already claimed he doesn’t know anything about his son’s business. This is a proven lie. You keep defending you dementia choice. You have no idea who’s running the country. Mr. 50 IQ isn’t.
Coup? Lol. Where were the guns? Where was the military? LMFAO
“Just because Joe didn’t report income doesn’t say he didn’t receive it. That’s the illegal part.” — Fucking brilliant. So any income I imagine you got but doesn’t show up on your taxes oughta land you in tax trouble? And, again, what money do you get from a deal that falls through? When the deal falls through, there is no income from it.
“That’s the illegal part. He’s already claimed he doesn’t know anything about his son’s business.”– No, he didn’t. He said Hunter Biden’s business dealing in China weren’t unethical and didn’t involve him when he was President or Vice President. You think Biden spent 50 years in politics and doesn’t know how to couch his words carefully? Also: which is it? Is Biden some kinda schemer who’s personally pulling the levers of corrupt foreign deals or is he the senile dotard who doesn’t know where he is? Because he can’t be both.
A coup is the violent and illegal seizure of control of government. Sounds like what happened January 6th. Many of the insurrections had guns. The military doesn’t have to be involved for it to be a coup; that’s why the phrase/term “military coup” exists. You keep laughing your ass off and downplaying the illegal attempt to hang onto power after losing an election. Here’s a representative sample BS you spouted prior to the January 6th insurrection:
“John, watch how many stores will be looted or burned by Trump supporters should he lose. Watch how we won’t accuse Biden of being a Russian operative” — https://fair.org/home/media-still-refuse-to-report-the-real-news-trump-is-trying-to-steal-the-election/
“If Trump loses and then steps down in January, will Josh Cho write an article apologizing for his Chicken Little article? I’ll be impressed if he has the courage to admit he is wrong. I will openly admit that I was wrong about Josh if he is correct. I know he reads these comments, so he cannot feign ignorance of being called out.” — Id.
“I cannot speak for all contributors at FAIR. Josh Cho is certainly Chicken Little. Will he have the courage to write an article apologizing for his warning that Trump will no step down? Of course, there were no facts, just TDS.” — https://fair.org/home/media-fail-to-prepare-public-for-potential-trump-coup/
“Another fear mongering article by Josh Cho. When Trump leaves the White House, will Josh Cho publish an apology article for his stoking the flames of fear? Will he be a coward and not publish an apology?” — https://fair.org/home/corporate-media-begin-to-acknowledge-gop-coup-attempt/
“Janine, why didn’t you correct Josh Cho when he purported that Donald Trump would remain in office even if he lost. Your only way of disagreeing with Cho is to be snarky with those of us that liked him? Cho bashes Trump by stating Trump won’t leave the office. You bash Trump supporters by stating that Trump will not be in the office on the 20th. You both contradict each other but only by attacking the right – not by attacking each other.” — https://fair.org/home/he-is-the-king-of-dirty-deals/
Face it , dude: Your predictions about what would happen when Trump lost were dead fucking wrong. But you can’t be wrong– you’re Tim! you’re an adult white male! everything your privileged ass believes has to be correct!– so now you gotta downplay how serious Jan. 6th was to placate your fragile fucking ego… “There were no guns! There was no military! The insurrectionists were invited– punch was served!” Whatever. GFY.
“Just because Joe didn’t report income doesn’t say he didn’t receive it.” — So just because you imagine he got income– since there is absolutely no proof of any money going his way and since there wouldn’t be any money going his way because when a deal doesn’t happen, there’s no money to be had– then it’s illegal. Fucking brilliant. I imagine you must be a money launderer for a dogfighting ring; when are they coming to arrest you?
He never claimed he didn’t know anything about Hunter’s business. What he said was that the business dealings were ethical. The very nature of the statement implies he has to know something about it. Seriously dude: You think Biden spend 40+ years in politics without knowing how to carefully couch his words?
Also: which version of Biden do you cultists hate again? Is he the back-room dealmaker plying foreign governments with shady deals for his son that make him “dangerous”? Or is he the senile dotard who doesn’t know where he is? Because he can’t fucking be both things. But you cultists insist on having it both ways, cognitive dissonance be damned.
Yeah, coup. The word means the sudden illegal/violent seizure of power. The guns were there with several armed protesters. There’s nothing in the definition of coup that requires the military. Bottom line is that Trump and his dipshit cultists didn’t wanna admit they lost an election, so they imagined widespread voter fraud happened and imagined it invalidated an entire election in states where they lost, and then exhorted and convinced a bunch of protesters to storm the Capitol in order to stay in power. If you don’t think that’s a coup– or at least a serious problem that can’t be just handwaved away– then you’re a fucking moron. You spent from about late November 2020 until January 6, 2021 on this very website making repeated comments about how “Trump will leave peacefully; it’s no big deal what he’s saying; you all are chicken littles,” and “We Republicans don’t trash building when we don’t get our way,” and all sorts of BS. And since January 6th proved you were wrong, you gotta downplay the events of January 6th– “It’s not coup! It was a love-fest! Punch was served!” Yeah… Right… You’re a Trump cultist and you can’t face the fact that you were wrong. Why should anyone take anything you say seriously?
You keep telling yourself that there was an attempted coup. The rest of us will keep laughing at you.
It’s well documented that Joe has denied any knowledge of his son’s business. All you need is intellectual integrity and curiosity.
Joe has declined visibly in the last year alone. He is both – an old man who is below his 100 IQ of years ago when he was a back room dealer. I can explain the concept of time to you if you’d like
Well, you were spectacularly wrong about what would happen when Trump lost and his BS lawsuits predictably went nowhere. So I’m not sure why anyone would wanna take your opinion about what is and what isn’t a coup, whether you’re laughing or not. I mean… You’re wrong about not being guns there– many in the crowd were armed. You’re wrong about needed the military to define something as a coup. And no amount of “LOL”s you throw into your arguments is gonna change that. Look back at my comments from that time: I said repeatedly that Trump’s crybaby act was harmful and was gonna get people hurt and was gonna damage the country. I was right; you were spectacularly wrong. Maybe my thinking as to what’s a coup is better than yours.
Biden’s statement was that his son’s deals were ethical. That is NOT the same thing as saying he had no knowledge of his son’s dealings. You’re reading into the statement what you wanna see.
LMFAO. There was no plan. The only shot fired was from a cop. That’s one heck of a coup.
Biden is on the record of stating that he knows nothing of his son’s business. Psaki has even stated that. You just don’t want to know the truth. Keep defending your crooked, dementia, Big Guy. Enjoy the stares into space, the one sided hand shakes, the only president who needs approval, who has a list of people he can call on, who gets rescued by a bunny. That’s the guy you elected
Tim,
Trump does not care about you. He did nothing for your demographic while he was in office. In fact, Trump signed more anti-gun executive orders and legislation in his one term than Obama signed in his two.
IGNORANT partisans misled by Trump and Hannity are the real threat.
LMFAO is not a counter-argument, dipshit. Particularly from you. What you laugh at means nothing to anyone reasonable, since we’ve all seen the absolute horseshit that you take seriously.
No plan? Oh, does that include the members of the Proud Boys and whatever other military cos-play jerkoff groups there wearing their tactic-cool gear (and often armed) who discussed, openly and brazenly on their little internet forums, their plans for who to target, capture, and kill and which evidence is being used against them in their trials? No plan… Yeah… Right.
You’re telling me you can look into the minds of 1000’s of rally attendees and say they didn’t have a plan at all? They were just there following the crowd and if the crowd had decided to march into the Potomac River, then they all woulda done that? You Trumpists are like a herd of zombies from the Walking Dead? Huh… actually, that kinda would make a LOT of sense. But to a larger and prior point: You said absolutely nothing would happen, and on Jan. 6th something pretty fucking big happened. So, again: You go it spectacularly wrong and I put it to you that you don’t wanna admit you were wrong, so you’re downplaying and handwaving away Jan. 6th. So why should anyone listen to you about it? You have next to no credibility in this area.
Whatever Biden’s problems, I’ll take them over Trump. At least Biden isn’t a fat-assed narcissistic con man who’d gladly sell out this country if it meant it would make him richer or if it meant he could get more people attending his rallies and kissing his fat ass. Whatever Biden’s problems, he was legitimately elected and you don’t get to imagine “election fraud” and try to violently obstruct the process of certifying the election results so your crybaby cult leader doesn’t have to admit that he’s a fucking fat-assed loser.
LMFAO