Constitutional scholar John Eastman is the subject of attorney ethics proceedings in Los Angeles this week, and is facing disbarment for conduct related to his 2020 election advocacy for President Donald Trump. Eastman—who retired as dean of Chapman University’s School of Law in Orange County after more than 160 faculty members signed a letter calling for the university to take action against him—served as Trump’s lawyer on several legal challenges rising out of the 2020 election.
The California State Bar filed eleven charges against Eastman in January, accusing him of making false and misleading statements regarding election fraud, “including statements on January 6, 2021, at a rally in Washington, D.C., that contributed to provoking a crowd to assault and breach the Capitol to intimidate then-Vice President Pence and prevent the electoral count from proceeding.”
Eastman strongly disputes the allegations, arguing that his political speech was protected by the First Amendment. His attorney Randall A. Miller said the case against Eastman “is part of a nationwide effort to use the bar discipline process to penalize attorneys who opposed the current administration in the last presidential election. Americans of both political parties should be troubled by this politicization of our nation’s state bars.”
Eastman is just the latest Trump attorney to face ethics charges following the rigged 2020 election. Former New York Mayor Rudy Giuliani, Sidney Powell and Jenna Ellis have all faced disciplinary proceedings, as has Jeffrey Clark, a former Justice Department official who supported Trump’s election integrity efforts within the department.
Rudy Giuliani’s law license was temporarily suspended in Washington, D.C. after bar proceedings found him culpable for misconduct in his efforts to overturn Pennsylvania’s votes. Jenna Ellis admitted to making numerous false statements about election fraud during her own negotiations with Colorado bar authorities. And similar proceedings are pending against former Justice Department attorney Jeff Clark, who has been fighting to get federal courts to intervene in the process.
Miller argued in court Tuesday that the election issues Eastman advanced were debatable and as former President Trump’s lawyer, he was authorized to advance them.
Miller wanted to call as an expert witness a certified public accountant and veteran auditor named Joseph Fried who wrote a book about the 2020 election titled “Debunked?: An auditor reviews the 2020 election―and the lessons learned.”
But California State Bar Court Judge Yvette Roland rejected Fried as a witness, saying he lacked relevant experience in auditing elections.
“I don’t see how Mr. Fried is qualified to be an expert,” she told Eastman.
Miller argued in response that as an experienced auditor, Fried could give a mathematical analysis of the vote data in key swing states.
Roland also ruled that defense witness Judge Janice Rogers Brown would not be allowed to testify on Eastman’s behalf.
Former Vice President Mike Pence’s lawyer Greg Jacob is a key witness for the prosecution.
At issue during the trial was an email exchange that began on January 5 between Eastman and Jacob, with Eastman arguing that Pence had the constitutional authority to reject certain electors from swing states when the votes were counted in Congress the next day.
On January 6 at 12:14 pm ET, as the riot was unfolding at the US Capitol, Jacob angrily rejected Eastman’s theories.
“I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results-oriented position that you would never support if attempted by the opposition, and essentially entirely made up,” Jacob wrote Eastman. “And thanks to your bullshit, we are now under siege.”
Eastman responded: “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.”
Jacob wrote back: “The advice provided has, whether intended or not, functioned as a serpent in the ear of the President of the United States, the most powerful office in the entire world. And here we are.”
Pence’s lawyer continued: “Respectfully, it was gravely, gravely irresponsible for you to entice the President with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.”
Carling argued that “Dr. Eastman and President Trump conspired to disrupt the electoral count on January 6 by pressuring Vice President Pence to violate the law.”
“When the court sees the entire course of conduct and the context in which it unfolded, it will be clear that all of Dr. Eastman’s conduct was fundamentally dishonest and intended to obstruct the lawful certification of the winner of the 2020 election on January 6,” he declared.
Miller told the Court that Dr. Eastman was a member of Trump’s election integrity team because “he brought decades of scholarly, academic, and litigation experience” to election integrity issues.”
“As time went on, his role in that capacity changed,” Miller explained, and his “focus was on ensuring that the election was properly and legally conducted and certified and votes were properly counted,”
“The facts will show that the purpose of Dr. Eastman’s eventual assessment here was to delay the counting of the electoral votes so there could be a reasonable investigation undertaken by those states and state legislatures to determine what the issues were, and to ensure that after … accounting for all the illegal votes, the rightful winner of the election would be certified,” Miller added. “That is what the goal was.”
The lawyer stressed that there was “colorable legal basis” to argue that Eastman’s legal opinions were tenable.
“State Supreme Court cases, opinions filed in cases by Justices at the United States Supreme Court, cases granted review by the United States Supreme Court all demonstrate that the legal assessments and advice advanced by Dr. Eastman on behalf of his client were viable, tenable, advanced in good faith, and many of the cases that were filed post-election had substantial merit,” Miller said.
“Your honor is already aware that there is a legal component to Dr. Eastman’s assessment here. The legal component is whether the Vice President has the constitutional authority to do more than just open the electoral votes on January 6, he said.
“This is not a new debate. There was substantial ambiguity about the 12th Amendment that captures that concept about the authority the Vice President had,” Miller added.
Indeed, in December of 2022, as part the omnibus spending bill, Congress addressed that ambiguity by passing federal elections legislation reforming the Electoral Count Act, the 1887 law that governed the counting of Electoral College votes in Congress. The legislation clarified the vice president’s role as the presiding officer over the joint session of Congress where those votes are counted as purely ceremonial.
“The facts will show that Vice President Pence’s counsel Jacob acknowledged the ambiguity in a memo that he wrote to Vice President Pence in early December 2020,” Miller argued in court. “This will be an exhibit in this case, and it’s very telling because Mr. Jacob goes on to say that it’s not clear what constitutional authority the Vice President has. That has been subject to scholarly debate for years.”
“Lawyers get to argue debatable issues, which is what Dr. Eastman did,” Miller declared.
The trial is expected to last eight days, and the final decision will be left to the California Supreme Court.