New evidence has emerged that former President Donald Trump likely made false representations in December 2020 to a Georgia federal court as part of his efforts to overturn the 2020 presidential election. Trump could be charged with the federal crimes of perjury or filing a false declaration for this conduct, which is the 56th criminal offense that he has been credibly accused of since first seeking the office of president.
Judge Carter’s October 19, 2022 decision implicates Trump in new crimes
On October 19, 2022, United States District Judge David O. Carter ordered that 33 records subpoenaed by the January 6th Select Committee be produced despite claims that they were privileged attorney work product or attorney-client communications. The records at issue were created by or sent to John Eastman, an attorney who worked with former President Trump to overturn the 2020 election. Because Eastman used an email address provided by Chapman University (“Chapman”), the Select Committee subpoenaed the records in question from the university.
In his opinion, Judge Carter explained eight of the records he was ordering Chapman to produce were subject to the crime-fraud exception, which prevents the attorney work product doctrine or attorney-client privilege from shielding records relating to and in furtherance of a fraud or crime.
Judge Carter concluded that four of those records indicated that the primary goal of Eastman and others in filing certain lawsuits challenging the 2020 election results was “not to obtain legal relief, but to disrupt or delay the January 6 congressional proceedings through the courts.” Because those records were sufficiently related to and in furtherance of a criminal attempt to obstruct an official proceeding (Congress’s certification of the 2020 election), in violation of 18 U.S.C. § 1512(c)(2), the crime-fraud exception applied.
Judge Carter concluded that an additional four records were subject to the crime-fraud exception because they “demonstrate an effort by President Trump and his attorneys to press false claims in federal court for the purpose of delaying the January 6 vote.” Judge Carter determined that these records showed that President Trump personally signed a verification swearing under oath that figures incorporated in the federal court complaint were true and correct to the best of his knowledge when in fact he knew them to be false. Judge Carter quoted an email in which Eastman wrote,
Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.
(The text in brackets was inserted by Judge Carter for clarity). The Court concluded that the documents showed that “President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public.” Therefore, the Court concluded that they were “sufficiently related to and in furtherance of a conspiracy to defraud the United States,” in violation of 18 U.S.C. § 371.
Politico obtained copies of the emails produced to the committee and reported that Trump’s lawyers debated whether to incorporate figures they knew to be false. They apparently decided to remove some specific allegations from the text of the federal complaint but nevertheless continued to incorporate by reference the state complaint that contained assertions they knew to be false. According to Politico, Eastman communicated the risk of prosecution to Trump’s other private attorneys: “I have no doubt that an aggressive DA or US Atty someplace,” he wrote, “will go after both the President and his lawyers once all the dust settles on this.”
Judge Carter did not spell out the relevance of the emails any further, but it is not difficult to see how these records would supplement the wealth of evidence in the public record that Trump engaged in a conspiracy to defraud the American people of a lawful election. The emails show one way in which Trump, Eastman, and others pursued their efforts to overturn the election through dishonest means—by filing in federal court allegations of voter fraud they knew to be false. The emails are also evidence of an overt act in furtherance of the conspiracy: making material misrepresentations in court to fuel the legal and extra-legal efforts to overturn the Georgia election results.
The federal perjury statutes
Anyone who certifies as truth any written testimony or declaration and “willfully and contrary to such oath states or subscribes [to] any material matter” they do not believe to be true commits the crime of perjury, in violation of 18 U.S.C. § 1621. 18 U.S.C. § 1623 separately makes it a crime to “knowingly make any false material declaration or make or use any other information, . . . knowing the same to contain any false material declaration” in any U.S. court proceeding.”
Conviction under either statute requires proof of similar elements: (1) false testimony; (2) under oath or affirmation; (3) made willfully (§ 1621) or knowingly (§ 1623); (4) regarding a material matter. See, e.g. United States v. Waldemer, 50 F.3d 1379, 1382 (7th Cir. 1995); United States v. Hvass, 355 U.S. 570, 574 (1958).
The standard for materiality is the same for both offenses: the test is “whether the false testimony was capable of influencing the tribunal on the issue.” United States v. Gremillion, 464 F.2d 901, 905 (5th Cir. 1972). See also United States v. Giarratano, 622 F.2d 153, 156 (5th Cir. 1980).
The intent requirement for each offense varies slightly: a violation of section 1621 requires proof that the defendant willfully made a false statement. That standard has been interpreted slightly differently by courts but typically is described as acting voluntarily and purposely—with the intent to do something the law forbids. A violation of section 1623, by contrast, only requires proof that the defendant knowingly made a false declaration, meaning simply that it was done voluntarily and intentionally—not because of a mistake or accident.
Evidence that Trump committed perjury
Judge Carter had no need to consider whether the Eastman records were related to and in furtherance of a violation of either section 1621 or 1623 because he concluded that they were in furtherance of a conspiracy to defraud the American people. Nonetheless, his opinion makes clear that Trump faces serious exposure to prosecution for perjury as well.
Carter’s opinion points us to a federal lawsuit that Donald Trump filed in the United States District Court for the Middle District of Georgia on December 31, 2020. The complaint restates unsubstantiated allegations made by Trump in state court filings that the votes of deceased individuals, unregistered persons, and defendants disenfranchised while serving a felony sentence were permitted to vote in Georgia. Although the federal complaint avoids repeating precise figures listed in the state complaint, the state allegations are attached as Exhibit 1 to the federal complaint.
Appended to Trump’s complaint in the Georgia federal court is a statement, witnessed and signed by a notary public, in which it is represented that Trump
[o]n oath says he has reviewed the Verified Complaint for Emergency Injunctive And Declaratory Relief and with regard to the facts contained therein, states that to the best of his knowledge and belief, and relying on the representations contained therein, the facts are true and correct where derived from his own knowledge and are believed to be true and correct where derived from the knowledge of others or from documents that are maintained in the course of business or are public records.”
An analysis of Trump’s verification, the complaint, and surrounding facts and circumstances suggests that all of the elements of the crime of perjury are met.
A false statement
Trump’s statement that the facts contained in his complaint “are believed to be true and correct where derived from the knowledge of others” was false. Eastman’s emails acknowledge that the information that Trump verified was false. And we don’t have to take Eastman’s word for it. The January 6 Committee documented in detail how Trump was briefed repeatedly in December 2020 by Department of Justice officials who told him the allegations of voter fraud—including the specific claims he was relying on in Georgia—were false. Indeed, in the weeks between the 2020 election and the filing of Trump’s lawsuit, Georgia election officials publicly refuted claims about voting irregularities. For these reasons, there is compelling evidence that Trump’s sworn verification of his Georgia complaint was false.
Under oath or in a court proceeding
There is no doubt that Trump made a statement under oath and in a court proceeding. His verification states specifically that his representations “on oath,” and his verification was attached to a complaint that by virtue of its filing initiated a federal lawsuit.
Made knowingly or willfully
The Eastman email quoted in Judge Carter’s opinion makes clear that at the time Trump verified the allegations in his federal complaint under oath, Trump had “been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate.” Eastman advised that “[f]or [Trump] to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.” Yet that is precisely what Trump did. The fact that Trump’s lawyers removed some but not all of the false allegations from Trump’s filings in federal court out of concern that he might face criminal liability is further evidence that Trump’s team was aware of the stakes; however, it is unclear whether those precise risks were communicated to Trump.
This element could also be proven using the evidence established by the January 6 Committee that Trump knew the Georgia voter fraud allegations were false. It is also likely that these facts would be sufficient to prove that Trump willfully filed a false declaration with the federal district court with a specific intent to get the court to rely on factual allegations he knew to be false.
Finally, there is little doubt that Trump’s false statement was material. The Federal Rules of Civil Procedure require that requests for emergency relief be accompanied by a sworn affidavit or a verified complaint. President Trump’s knowingly false verification was capable of influencing the Georgia federal court to rely on false allegations to grant Trump emergency relief, thus it was a material misrepresentation.
Trump’s possible defenses are weak
Perhaps to provide cover for the former president, Trump’s legal team appears to have attempted two sleights of hand. First, they included in the verification language stating that the facts are “correct where derived from [Trump’s] own knowledge.” They also apparently removed particularly problematic figures from the text of the complaint and added a footnote in which they stated that “the facts and figures submitted by affidavits and experts reports/opinions in the lower court and incorporated herein by reference, have been relied upon by Plaintiff only to the extent that such information has been provided to Plaintiff” and that “Plaintiff has not sworn to any facts under oath for which he does not have personal knowledge or belief.”
The problem for Trump is that, according to Eastman’s emails and the evidence presented by the January 6 Select Committee, Trump had personal knowledge that the Georgia fraud allegations in his state court complaint were false and that document was appended to and filed with the federal complaint that Trump verified. For that reason, prosecutors would be armed with compelling evidence that Trump did not in fact believe the facts contained in his federal filings were in fact “true and correct where derived from the knowledge of others.”
President Trump faces a staggering number of credible allegations that he committed crimes—including numerous charges relating to his efforts to overturn the 2020 election. Judge Carter’s opinion in the Eastman case includes evidence to add a 56th crime to that list: perjury, in violation of either 18 U.S.C. § 1621 or § 1623.