In a column for Politico, former federal prosecutor Renato Mariotti suggested that a quintet of lawyers who attempted to help Donald Trump steal the 2020 presidential election could be the first major players in the former president's orbit to be hit with criminal conspiracy charges due to revelations from the House Jan 6th committee hearings thus far.
According to Mariotti, the actions of John Eastman, Rudy Giuliani, Sydney Powell, Jenna Ellis and Jeffrey Clark seem to be a major focus of the bi-partisan select committee, and that the evidence presented makes a strong case against each of them.
"Of all the evidence uncovered by the committee, what jumps out to me as a former federal prosecutor are the 'fake elector' certificates signed by Trump electors and submitted to former Vice President Mike Pence in an effort to delay the certification of the electoral votes on January 6. Those certificates contained statements that are easily proven false," he wrote before adding, "Typically, lawyers are not a weak link. In my experience, lawyers have been the most difficult defendants to convict. They’re usually careful about what they say and what they write down. But Trump’s coterie of dishonest legal advisers — John Eastman, Rudy Giuliani, Sydney Powell, Jenna Ellis and Clark — weren’t careful. In their attempts to overturn the results of the 2020 election, they said things that were demonstrably false and were personally involved in lies told to government officials."
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Writing, "If prosecutors can prove that one or more of them created the false certificates, and knew that doing so was illegal, they may have criminal liability," he suggested that testimony given so far has demonstrated that they knew they were lying and that could be used against them in a trial where, by virtue of the fact that they are also attorneys, makes the case against them even easier.
"Because the statute criminalizing false statements requires knowledge that the statement was false and that the defendant was doing something illegal, the attorneys are the easiest targets for DOJ," he wrote before elaborating, "As attorneys, it will be hard for Eastman, Giuliani and Ellis to claim that they had no idea that they were acting outside the four corners of state law by convening 'alternative' electors and submitting them to the Senate even though the state had already submitted official electors. It will also be hard for Clark to argue that he had no idea that what he was doing was illegal, given that his superiors forcefully told him so."
Calling the cases against them the easiest path for prosecutors eager to head to court, Mariotti added, "But if federal prosecutors build a case against Giuliani, Eastman or Clark first, they could potentially flip one of them and have a key cooperator against Trump. Presumably Trump had forthcoming one-on-one conversations with those attorneys, believing that they were protected by attorney-client privilege."
"If one of them agreed to cooperate, DOJ could go to a judge seeking an order permitting disclosure of Trump’s statements under the crime-fraud exception to attorney-client privilege, which permits disclosure of private communications between an attorney and client if they were about ongoing crimes," he predicted.
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