During the final weeks of the Trump administration attorney John Eastman promoted false conspiracy theories and allegations of fraud to pressure Republican state legislatures to appoint alternate slates of presidential electors. Based on a contorted reading of constitutional history he attempted to influence White House advisors in a legal opinion that the Vice President had the unilateral authority to reverse or delay the presidential electoral count when he presided over a joint session of the United States Congress on January 6, 2021. Now the California attorney is fighting to keep his law license at a State Bar hearing on disciplinary charges that his bogus legal advice pushed democracy to the precipice.

1. Introduction

On January 26, 2023, the State Bar of California charged conservative attorney John Eastman with eleven disciplinary charges stemming from allegations that he assisted former President Donald Trump with a strategy to overturn the results of the 2020 presidential election in the United States. (here) It is not controversial that Dr. Eastman is the architect of a memorandum that asserted former Vice President Mike Pence could keep President Trump in power by overturning the results of the election during a joint session of Congress convened to count the electoral votes. The State Bar alleges that Dr. Eastman violated the California Rules of Professional Conduct by making false and misleading statements that constitute acts of dishonesty, corruption and moral turpitude. (here) Dr. Eastman immediately responded through his attorney claiming his assessment of the constitutional landscape was supported by a reasonable interpretation of legal and historical precedent and the State Bar’s action is part of a national effort to penalize attorneys who opposed the current administration.

2. Who is John Eastman?

A cornhusker by birth, hailing from Lincoln, Nebraska, Dr. Eastman obtained a Bachelor of Arts degree from the University of Dallas, a Juris Doctor from the University of Chicago and a Ph.D. from Claremont Graduate University. He is the founding director of the Center for Constitutional Jurisprudence, a public interest law firm affiliated with the Claremont Institute, and a former professor and dean at Chapman University School of Law. He is also a former law clerk to U.S. Supreme Court Justice Clarence Thomas. On January 6, 2021, Dr. Eastman appeared at the Ellipse, the park south of the White House fence in Washington, D.C., with President Trump’s former attorney, Rudy Giuliani. If you are unfamiliar with Dr. Eastman, he is the man in the widely-circulated video wearing the Indy fedora and camel hair coat on the platform next to Mr. Giuliani as he exhorted the mob: “Let’s have trial by combat.” (here) Dr. Eastman spoke at the rally preceding the Capitol riot and resigned from the Chapman law faculty a week later as a result of the controversy created by his speech.

3. What is the State Bar of California?

The State Bar of California, with offices in San Francisco and Los Angeles, is the governing body of the legal profession in California responsible for the licensing, regulation and discipline of attorneys. Its primary functions also include oversight of ethical standards and the competent practice of law. It licenses approximately 270,000 attorneys. (here) Created by the California State Legislature in 1927, the State Bar is a branch of the Supreme Court of California, the state’s highest court. (here and here) It investigates approximately 16,000 complaints of attorney misconduct and unauthorized practice of law annually. If there is a basis for prosecution, the State Bar will then file a complaint with the State Bar Court. If an attorney is recommended for suspension or disbarment by the State Bar Court, the discipline is ultimately forwarded to the Supreme Court for final approval. If criminal conduct is suspected, the State Bar may also refer the case to a law enforcement agency for investigation and potential prosecution.

4. The Charges and Joint Pretrial Statement

At the core of the eleven disciplinary charges is the allegation that Dr. Eastman plotted with former President Trump to develop a legal and political strategy to dispute the results of his November 3, 2020, election defeat “by promoting the idea that the election was tainted by fraud, disregard of state election law and misconduct by election officials.” (here) The State Bar asserts that Dr. Eastman did two things. First, he provided legal advice, formulated legal strategies and engaged in litigation based on allegations of election fraud that he knew were false. Second, based on misrepresentations of historical sources and law review articles, he provided legal advice regarding the unilateral authority of the Vice President to disregard or delay the counting of electoral votes that he knew was contrary to the Electoral Count Act and the Twelfth Amendment to the Constitution of the United States. If Dr. Eastman did not know these things, the State Bar claims he was grossly negligent in not knowing. Of the eleven counts, I will focus on count one.

Count One states that from December 23, 2020, to January 6, 2021, Dr. Eastman violated his obligation under the Business and Professional Code to uphold the Constitution and the laws of the United States by engaging in conduct to “plan, promote, execute, and assist” the former President in executing a strategy for him to overturn the legitimate results of the election by “obstructing the count of electoral votes of certain states” that was not supported by either the facts or law. The states were Arizona, Georgia, Michigan, Pennsylvania, Nevada, New Mexico and Wisconsin. On December 23, 2020, Dr. Eastman wrote a two-page legal memorandum outlining “alternative strategies for action based on Pence refusing to count the electoral votes from seven states that had voted for candidate Joe Biden.” In his speech delivered at the Ellipse on January 6, 2021, Dr. Eastman addressed the crowd “with the intent of promoting doubt in the results of the election […].” He said, “We know there was fraud, traditional fraud that occurred. We know that dead people voted.” The State Bar contends that Dr. Eastman knew there was no evidence “upon which a reasonable attorney would rely of fraud in any state election […].”

On June 5, 2023, the parties filed the Joint Pretrial Statement that contains the State Bar’s legal argument underpinning the charges and Dr. Eastman’s response. (here) The State Bar specifically argues that Dr. Eastman “conspired with former President Trump and his allies in a multi-pronged strategy” to set aside the votes of millions of Americans and keep the former President in power. The initial strategy involved “trying to persuade the courts and state legislatures to decertify the election results.” As it became clear that no court or legislature would do so, the strategy evolved to include: (a) urging Trump electors in the seven states to sign and submit alternate slates of electors; and, (b) advising President Trump that Vice President Pence, as President of the Senate, “had the legal authority to unilaterally reject the Biden electoral slates, or to delay the count to allow state legislatures to investigate further, all without subsequent judicial review.”

The State Bar goes on to argue that Dr. Eastman undertook these actions in furtherance of a “shared plan” with President Trump and others: (a) to have Vice President Pence violate Article II, s. 1 of the Constitution, the Twelfth Amendment and the Electoral Count Act by unilaterally disregarding the electoral votes of certain states or delaying their counting; (b) to reverse the outcome of the election by depriving voters of certain states their rights to have their votes counted, in violation of the Constitution and state and federal laws; and, (c) to obstruct a Joint Session of Congress on January 6, 2021, in violation of 18 U.S.C. § 371. Article II of the Constitution and the Twelfth Amendment provide the procedure for electing the president and vice president. (here and here)

In his response, Dr. Eastman “disputes every aspect of the Bar’s charges” and asserts that the issue is exceedingly simple: Was his assessment tenable? His constitutional theory, contained in an internal discussion document, was not “absolute legal certainty” but an “objectively sound” assessment that was “arguably tenable”. His advice to his client was not “something that all reasonable attorneys would agree was totally and completely devoid of merit” and, therefore, not actionable or deserving of sanction. Dr. Eastman also contends that his actions are protected free speech. “Lawyers do not relinquish their First Amendment rights when they obtain a law license, and the First Amendment limits the regulation of lawyers’ speech even when they are engaged in law practice,” he argues.

5. The Hearing

On June 20, 2023, the hearing began. Dr. Eastman testified. According to The Washington Post, he remained “somewhat defiant” when presented with data from Georgia Secretary of State Brad Raffensperger that disputed, among other claims by Dr. Eastman, that “66,000 underage people and 2,500 convicted felons had voted in the state in the 2020 election.” (here) When asked if he would dispute the findings from Mr. Raffensperger’s office, Dr. Eastman said “he had no reason to disagree or to agree.” The State Bar played a video of Dr. Eastman telling Georgia lawmakers they had a “duty” to either hold a special election or appoint an alternate slate of electors. As reported by Reuters, Dr. Eastman disagreed with State Bar attorney Duncan Carling that he was urging the legislators in the subcommittee to certify a different slate of electors. “I don’t believe that’s an accurate characterization,” Dr. Eastman said, adding that if the lawmakers found there was election fraud, “they needed to act.” (here)

On June 21, 2023, Greg Jacob testified. He is a partner at the multinational law firm O’Melveny & Myers and served as counsel to former Vice President Pence. Mr. Jacob said the Trump supporters who gathered at the Capitol on January 6, 2021, believed the Vice President could use his role as President of the Senate to tilt the outcome of the election. “The reason they were there, the reason that they were angry, and the reason they were demanding that action be taken, was they believed that there was a momentous decision to make in the building that day,” Mr. Jacob said. (here and here) As the assault on the Capitol was underway, Mr. Jacob emailed Dr. Eastman saying no judge would endorse his legal strategy for overturning President Trump’s defeat, adding: “And thanks to your bullshit, we are now under siege.”

6. Conclusion

Mr. Jacob’s blunt description of Dr. Eastman’s constitutional theory is reminiscent of the testimony of White House lawyer Eric Herschmann before The Select Committee to Investigate the January 6th Attack on the United States Capitol. Mr. Herschmann told Dr. Eastmann his plan “obviously made no sense” and was “completely crazy”. According to Mr. Herschmann, he said to Dr. Eastman, “[H]old on a second, I want to understand what you’re saying. You’re saying you believe the Vice President, acting as President of the Senate, can be the sole decisionmaker as to, under your theory, who becomes the next President of the United States? And he said, yes. And I said, are you out of your F’ing mind, right.” As Judge David O. Carter said in Eastman v. Thompson, an action brought by Dr. Eastman to stonewall the Select Committee’s access to his emails with Chapman University, “Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower – it was a coup in search of a legal theory.” (here)