GUILTY! CIRCUMSTANTIAL EVIDENCE IS THE CLINCHER

Recently, California Federal District Judge David Carter looked at the mountain of evidence before him and concluded that it was “ more likely than not” that President Trump was guilty of the crime of corruptly attempting to obstruct the joint session of Congress on January 6, 2022. He found that Trump and his lawyer John Eastman were "more likely than not" to have conspired to obstruct the function of the federal government by "deceitful or dishonest means."

This was not a criminal proceeding. It was a ruling of Eastman's claims that material in his possession need not be turned over to the House Insurrection Committee because the documents consisted of lawyer/client communications and therefore were privileged. 

While the judge agreed much if it was indeed lawyer-client communication, he found it was not privileged because the documents fell into a category of an exception to the privilege, known as the "crime/fraud" exception. What that means is that he found it was more likely than not that client Trump knew what they were doing was illegal. 

How did the judge know what Trump knew? Because there was, he said "strong circumstantial evidence" to show this was a criminal conspiracy.

And all of this was before the judge knew about the recently-revealed 7.5 hour gap in Trump's telephone logs – the hours between 11 AM and 7 PM on January 6, 2022 – the most violent hours of the Capitol insurrection riot.

So far, there has been no valid explanation for that gap in the phone log. There is conclusive evidence that the president did indeed make and receive telephone calls during that time, but otherwise no rational explanation has been offered for the gap in the log. 

Was the White House log tampered with? Was a page removed? Did the president intentionally deceive the White House switchboard to hide his calls? Did he use a "burner phone" to avoid the White House switchboard? (While the former president has shed no light on the gap mystery, he has, in response to a press question, denied using a "burner phone" during that period. He said he was "not familiar with the term" and didn't know what a burner phone was! If that statement isn't totally absurd on its face, John Bolton has said that, in fact, he had frequently discussed with Trump the use of burner phones!)

Those few of us who can still remember as far back as 1972, will doubtless recall another "gap" in presidential record-keeping: the 18.5 minute gap in the White House tapes during a conversation between Nixon and his Chief of Staff Haldeman, immediately subsequent to the Watergate break-in. Every sentient person knew that the gap was the result of an intentional erasure to hide the president’s criminality. It was circumstantial evidence that proved, despite his absurd denial, that Richard Nixon was indeed a crook.

 (As it happens, Nixon was a lousy editor, and when a unanimous Supreme Court ordered him to turn over the remaining tapes to the special prosecutor, the so-called "smoking gun" effort to suppress the Watergate investigation by misusing the CIA was there for all to see and hear, and led to Nixon's demise.)

Destruction of evidence has always been found by courts to be strong circumstantial evidence of corrupt motive. If, as I suspect, further inquiry will reveal that Trump did something to block out that 7.5 hours of telephonic evidence, whether it was some method to evade the White House switchboard or subsequent tampering with the White House logs, it will, I suggest, prove beyond a reasonable doubt, even to a supremely-cautious Merrick Garland, that Donald Trump is a crook, was a crook, and he and his crew of Eastland, Giuliani, Bannon, Meadows, et al. are guilty of ‘'corruptly attempting to obstruct the joint session of Congress on January 6, 2021."

How powerful is evidence of document destruction to show an actor's state of mind? It is, I suggest, overwhelming proof.

I offer up one example from my personal experience: I represented a plaintiff in a libel suit in which the defendant (CBS, and one of its leading newscasters) defamed my client, a public corporation. The evidence at trial proved conclusively that the newscaster’s accusations were false. 

But my client, by virtue of its being a public corporation, had to prove that the defendant newscaster spoke with "actual malice", i.e. that he knew what he was saying was false or he had serious doubts about its truth and went ahead and published the accusation anyway.

So, how do I go about proving the defendant's state of mind? I.e. how do I prove what did he know, what did he believe about the truthfulness of his statements?

The answer was circumstantial evidence, and in that case the circumstantial evidence was that he and CBS had destroyed key documents reflecting his state of mind on that issue. The  destruction was highly selective and both the jury and later a unanimous Circuit Court (in the newscaster's hometown) concluded that the bad faith destruction of documents was indeed compelling evidence of his state of mind, i.e, he spoke with “actual malice.” 

I add a caution here: in the civil case reported in the first paragraph of this note, the burden of proof on the proponent was to persuade by a simple “preponderance of evidence." That is to say there is at least one more grain of sand on one side of the balance scales than on the other, making it “more likely than not” that the claim is proven. But to prove "actual malice" in a libel case, one must do so by far more than a preponderance of the evidence. The requirement is for a "clear and convincing" showing by the proponent.

 

One more warning here for the civilians: "clear and convincing" is close to but not the same as “beyond a reasonable doubt" which is the standard of proof the prosecutor must meet in a criminal case.

I will not here rehearse the already substantial evidence of Donald Trump's complicity, of his knowledge that his conduct was criminal. If you want to refresh yourself, read Judge Carter's opinion in the Eastman case cited above. But there can be little doubt that when you add to that, the 7-1/2 hour gap in White House telephone logs at the precise time the mob was ravaging the Capitol Building immediately following upon then-President Trump’s "let's get wild" speech, I suggest there can be no serious doubts of Trump’s culpability.

I have no doubt that Attorney General Merrick Garland is a smart guy. I'm even willing to concede he's smarter than I am. Therefore I believe he will, in time, put aside his political timorousness, take a hard look at the facts, and get to the end of the movie: indict the crook.

A bientot. 

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