For months, critics of the Justice Department’s investigation into the Jan. 6, 2021, assault on the Capitol have claimed — with no real evidence — that prosecutors were pursuing only low-level rioters while ignoring those who orchestrated the attempt to overthrow the 2020 presidential election. In a single day this week, developments in two cases put the lie to this claim. The legal walls are slowly closing in around the leaders of the assault on our democracy — potentially including former president Donald Trump himself.
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On Wednesday, Joshua James pleaded guilty in federal court to seditious conspiracy: conspiring to use force to hinder the execution of any law of the United States. James is one of 11 members of the extremist militia group the Oath Keepers recently indicted on charges related to this and other crimes. He admitted in court that he and other members traveled to Washington with weapons and military gear, planning to take up arms against the government and prevent Congress from certifying Joe Biden’s victory. As part of his plea, James has agreed to cooperate with prosecutors.
James is the first Capitol riot defendant to plead guilty to sedition. His cooperation could be a major breakthrough as prosecutors investigate the scope of the conspiracy to prevent the peaceful transfer of presidential power, potentially moving beyond the Oath Keepers themselves. For example, James and other Oath Keepers provided security for Trump confidant Roger Stone during some of the events of Jan. 6. Now prosecutors have a cooperating witness who may provide a firsthand account of what role, if any, Stone and other senior Trump advisers may have played in orchestrating the insurrection.
Also Wednesday, attorneys for the House Select Committee investigating the events of Jan. 6 dropped another bombshell. They told a federal judge in California that the committee thinks Trump himself may have committed federal crimes in connection with the attempts to overturn the election.
The allegations came in litigation concerning former Trump attorney John Eastman, the architect of the universally discredited theory that on Jan. 6, Vice President Mike Pence could simply have rejected the electoral votes of certain states that Biden won and declared Trump the winner. Eastman was one of the Trump advisers who occupied the “war room” at the Willard hotel in early January, orchestrating Trump’s efforts to overturn the election results. The House committee subpoenaed Eastman’s emails and he has withheld thousands of them, claiming they are protected by attorney-client privilege.
In the court filing, attorneys for the committee argue that the emails should be turned over, based on the rule that communications with an attorney are not privileged if made in furtherance of a crime or fraud. They allege that Trump was communicating with Eastman in furtherance of at least two federal felonies: conspiracy to defraud the United States, and obstruction of a congressional proceeding.
It’s true that these allegations are in a civil proceeding limited to the question of attorney-client privilege, which is a far cry from a criminal indictment. Prosecutors seeking to prove a crime would face a much higher burden of proof. But the implications for the criminal investigation are clear. For the first time, government attorneys have told a federal judge that Trump may have committed crimes in connection with Jan. 6. These claims have now moved from the realm of social media chatter into serious allegations in federal court. If the judge finds that the crime-fraud exception applies, the shock waves will be even stronger.
The significance here is not whether the Select Committee will make a formal criminal referral to the Justice Department, although that certainly seems likely. The department doesn’t need a referral to act, and it actually might be counterproductive. The significance is what these allegations say about how the committee’s attorneys — a number of whom are former federal prosecutors — feel about where the evidence is pointing. We can be confident that the prosecutors at the Justice Department are in touch with these attorneys and are paying attention.
In his recent speech marking the first anniversary of Jan. 6, Attorney General Merrick Garland vowed that the department would pursue those responsible “at any level,” whether or not they were physically present at the Capitol. As Garland noted, in a large investigation like this, prosecutors typically build cases against lower-level players, persuade them to cooperate, and gradually move up the ladder to more serious charges and higher-level defendants. It takes time to do this properly. But this week’s events further confirm that this is exactly what’s happening.
These investigations are moving inexorably into the activities of those in Trump’s inner circle. As investigators proceed up the ladder of alleged conspiracies, people such as Eastman and Stone are only one rung from the top. And we all know who’s sitting on that top rung.
Opinions to start the day, in your inbox. Sign up.
On Wednesday, Joshua James pleaded guilty in federal court to seditious conspiracy: conspiring to use force to hinder the execution of any law of the United States. James is one of 11 members of the extremist militia group the Oath Keepers recently indicted on charges related to this and other crimes. He admitted in court that he and other members traveled to Washington with weapons and military gear, planning to take up arms against the government and prevent Congress from certifying Joe Biden’s victory. As part of his plea, James has agreed to cooperate with prosecutors.
James is the first Capitol riot defendant to plead guilty to sedition. His cooperation could be a major breakthrough as prosecutors investigate the scope of the conspiracy to prevent the peaceful transfer of presidential power, potentially moving beyond the Oath Keepers themselves. For example, James and other Oath Keepers provided security for Trump confidant Roger Stone during some of the events of Jan. 6. Now prosecutors have a cooperating witness who may provide a firsthand account of what role, if any, Stone and other senior Trump advisers may have played in orchestrating the insurrection.
Also Wednesday, attorneys for the House Select Committee investigating the events of Jan. 6 dropped another bombshell. They told a federal judge in California that the committee thinks Trump himself may have committed federal crimes in connection with the attempts to overturn the election.
The allegations came in litigation concerning former Trump attorney John Eastman, the architect of the universally discredited theory that on Jan. 6, Vice President Mike Pence could simply have rejected the electoral votes of certain states that Biden won and declared Trump the winner. Eastman was one of the Trump advisers who occupied the “war room” at the Willard hotel in early January, orchestrating Trump’s efforts to overturn the election results. The House committee subpoenaed Eastman’s emails and he has withheld thousands of them, claiming they are protected by attorney-client privilege.
In the court filing, attorneys for the committee argue that the emails should be turned over, based on the rule that communications with an attorney are not privileged if made in furtherance of a crime or fraud. They allege that Trump was communicating with Eastman in furtherance of at least two federal felonies: conspiracy to defraud the United States, and obstruction of a congressional proceeding.
It’s true that these allegations are in a civil proceeding limited to the question of attorney-client privilege, which is a far cry from a criminal indictment. Prosecutors seeking to prove a crime would face a much higher burden of proof. But the implications for the criminal investigation are clear. For the first time, government attorneys have told a federal judge that Trump may have committed crimes in connection with Jan. 6. These claims have now moved from the realm of social media chatter into serious allegations in federal court. If the judge finds that the crime-fraud exception applies, the shock waves will be even stronger.
The significance here is not whether the Select Committee will make a formal criminal referral to the Justice Department, although that certainly seems likely. The department doesn’t need a referral to act, and it actually might be counterproductive. The significance is what these allegations say about how the committee’s attorneys — a number of whom are former federal prosecutors — feel about where the evidence is pointing. We can be confident that the prosecutors at the Justice Department are in touch with these attorneys and are paying attention.
In his recent speech marking the first anniversary of Jan. 6, Attorney General Merrick Garland vowed that the department would pursue those responsible “at any level,” whether or not they were physically present at the Capitol. As Garland noted, in a large investigation like this, prosecutors typically build cases against lower-level players, persuade them to cooperate, and gradually move up the ladder to more serious charges and higher-level defendants. It takes time to do this properly. But this week’s events further confirm that this is exactly what’s happening.
These investigations are moving inexorably into the activities of those in Trump’s inner circle. As investigators proceed up the ladder of alleged conspiracies, people such as Eastman and Stone are only one rung from the top. And we all know who’s sitting on that top rung.
