Readers of this blog will recall that I have written often about the defraud conspiracy and its interpretation in Hammerschmidt v. United States, 265 U.S. 182, 188 (1924). That interpretation, which I sometimes call the Hammerschmidt spin, provides a definition for defraud that expands beyond the definition of fraud in the criminal law and is thus a judicial expansion. I and others have expressed concern about that expansion. See e.g., my most recent offering which summarizes the concern. District Court Rejects Claim That Supreme Court Expansion of Defraud Conspiracy Is In Error (3/24/22; 3/27/22), here. I usually address the concern in a tax setting where the Hammerschmidtspin is referred to as a Klein conspiracy.
Those who have been watching the news may have picked up that a federal district judge in California recently deployed the Hammerschmidtspin in determining whether certain communications by John Eastman, Trump’s putative attorney for attempting to prevent the certification of Biden as President, including the events surrounding the siege and breach of the Capitol on January 6. See Eastman v. Thompson (C.D. Cal. Dkt # 8:22-cv-00099-DOC-DFM 3/8/22), CL hereand GS here [to come]. In rejecting various claims of privilege or right to withhold documents, the Court concluded inter alia (pp. 36-39) that Eastman and Trump likely committed the defraud conspiracy crime. I thought readers interested in this issue may like the analysis which I copy and paste here (I leave the footnote numbers in the text but omit the footnotes except for the footnote citation to Hammerschmidt.):
ii. Conspiracy to Defraud the United States
The Select Committee also alleges that President Trump, Dr. Eastman, and others conspired to defraud the United States by disrupting the electoral count, in violation of 18 U.S.C. § 371.242 That crime requires that (1) at least two people entered into an agreement to obstruct a lawful function of the government (2) by deceitful or dishonest means, and (3) that a [*37] member of the conspiracy engaged in at least one overt act in furtherance of the agreement.243
As the Court discussed at length above,244 the evidence demonstrates that President Trump likely attempted to obstruct the Joint Session of Congress on January 6, 2021. While the Court earlier analyzed those actions as attempts to obstruct an “official proceeding,” Congress convening to count electoral votes is also a “lawful function of government” within the meaning of 18 U.S.C. § 371, which Dr. Eastman does not dispute. An “agreement” between co-conspirators need not be express and can be inferred from the conspirators’ conduct.245 There is strong circumstantial evidence to show that there was likely an agreement between President Trump and Dr. Eastman to enact the plan articulated in Dr. Eastman’s memo. In the days leading up to January 6, Dr. Eastman and President Trump had two meetings with high-ranking officials to advance the plan. On January 4, President Trump and Dr. Eastman hosted a meeting in the Oval Office to persuade Vice President Pence to carry out the plan. The next day, President Trump sent Dr. Eastman to continue discussions with the Vice President’s staff, in which Vice President Pence’s counsel perceived Dr. Eastman as the President’s representative.246 Leading small meetings in the heart of the White House implies an agreement between the President and Dr. Eastman and a shared goal of advancing the electoral count plan. The strength of this agreement was evident from President Trump’s praise for Dr. Eastman and his plan in his January 6 speech on the Ellipse: “John is one of the most brilliant lawyers in the country, and he looked at this and he said, ‘What an absolute disgrace that this can be happening to our Constitution.’”247 Based on these repeated meetings and statements, the evidence shows that an agreement to enact the electoral count plan likely existed between President Trump and Dr. Eastman.
Deceitful or dishonest means Obstruction of a lawful government function violates § 371 when it is carried out “by [*38] deceit, craft or trickery, or at least by means that are dishonest.”248 While acting on a “good faith misunderstanding” of the law is not dishonest, “merely disagreeing with the law does not constitute a good faith misunderstanding . . . because all persons have a duty to obey the law whether or not they agree with it.”249
n248 Hammerschmidt v. United States, 265 U.S. 182, 188 (1924).The Court discussed above how the evidence shows that President Trump likely knew that the electoral count plan was illegal.250 President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by “dishonest” means under § 371.
The evidence also demonstrates that Dr. Eastman likely knew that the plan was unlawful. Dr. Eastman heard from numerous mentors and like-minded colleagues that his plan had no basis in history or precedent. Fourth Circuit Judge Luttig, for whom Dr. Eastman clerked, publicly stated that the plan’s analysis was “incorrect at every turn.”251 Vice President Pence’s legal counsel spent hours refuting each part of the plan to Dr. Eastman, including noting there had never been a departure from the Electoral Count Act252 and that not “a single one of [the] Framers would agree with [his] position.”253
Dr. Eastman himself repeatedly recognized that his plan had no legal support. In his discussion with the Vice President’s counsel, Dr. Eastman “acknowledged” the “100 percent consistent historical practice since the time of the Founding” that the Vice President did not have the authority to act as the memo proposed.254 More importantly, Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law,”255 including explicitly characterizing the plan as “one more relatively minor violation” of the Electoral Count Act.256 In addition, on January 5, Dr. Eastman conceded that the Supreme Court would [*39] unanimously reject his plan for the Vice President to reject electoral votes.257 Later that day, Dr. Eastman admitted that his “more palatable” idea to have the Vice President delay, rather than reject counting electors, rested on “the same basic legal theory” that he knew would not survive judicial scrutiny.258
Dr. Eastman’s views on the Electoral Count Act are not, as he argues, a “good faith interpretation” of the law;259 they are a partisan distortion of the democratic process. His plan was driven not by preserving the Constitution, but by winning the 2020 election: [Dr. Eastman] acknowledged that he didn’t think Kamala Harris should have that authority in 2024; he didn’t think Al Gore should have had it in 2000; and he acknowledged that no small government conservative should think that that was the case.260
Dr. Eastman also understood the gravity of his plan for democracy—he acknowledged “[y]ou would just have the same party win continuously if [the] Vice President had the authority to just declare the winner of every State.”261
The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.
Overt acts in furtherance of the conspiracy
President Trump and Dr. Eastman participated in numerous overt acts in furtherance of their shared plan. As detailed at length above, President Trump’s acts to strong-arm Vice President Pence into following the plan included meeting with and calling the Vice President and berating him in a speech to thousands outside the Capitol.262 Dr. Eastman joined for one of those meetings, spent hours attempting to convince the Vice President’s counsel to support the plan, and gave his own speech at the Ellipse “demanding” the Vice President “stand up” and [*40] enact his plan.263 Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.
JAT Note: May this commotion which might ultimately result in indictments for the defraud conspiracy will give the Supreme Court another opportunity to reconsider the Hammerschmidt spin. A pattern of conduct that could only be charged with the Hammerschmidt spin on the defraud conspiracy is not often likely, for there are many other criminal charges that could be pursued. For example, most directly, the crime of obstruction of Congress for the conduct of attempting to obstruct or impeded the electoral count, which could be charged as a substantive crime under 18 U.S. Code § 1505 and, to meet prosecutors’ seeming ubiquitous need for charging a conspiracy, a specific offense conspiracy to violate § 1505.
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