Why a Ruling Declaring Trump ‘Likely’ Broke Laws May Not Mean He’ll Be Prosecuted

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In a high-profile ruling, a federal judge concluded this week that former president Donald Trump likely committed felonies related to his efforts to overturn the results of the 2020 presidential election. It intensified scrutiny on the question of whether the Justice Department can, or will, try to charge Trump with these crimes. 

However, experts warn that this ruling does not necessarily mean that a prosecution will arrive at the same conclusion. 

A subpoena was issued by the House committee to investigate the violent January 6, 2021 riot on the Capitol by Trump supporters who stormed the building in order to stop Congress from certifying Joe Biden’s victory in the 2020 election.

This subpoena instructs Chapman University to hand over any emails from a former professor, John Eastman, who is known for having supplied legal arguments to Trump while he tried to overturn the election. Eastman filed a lawsuit to block this subpoena of his emails and argued that his emails were covered by attorney-client privilege as well as attorney work-product privilege. 

In this ruling, the Federal District Court for the Central District of California Judge David Carter said that the committee could indeed get certain emails, and this could be done through an exception to the privileges for communication that seeks to further a crime. He said that this is because it is “more likely than not” that Trump sought to obstruct a government proceeding. 

In both private and public, Trump pressured his then-Vice President Mike Pence to reject or to delay counting the Electoral College votes to certify Biden’s victory, claiming baselessly that his loss to Biden in certain states was fraudulent.

Because there was no legitimate basis for Pence to actually delay the certification, the fact that Trump pressured him could mean that it was unlawful obstruction of government proceedings, and also could amount to defrauding the government. 

However, the ruling is not a full road map to an indictment, because the context is different. This ruling was not a criminal prosecution, it was about handing over emails. 

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