It must be disappointing that, in the hailstorm of pardons thundering from our nation’s stormy capital, none apparently has John Eastman’s name on it.
David Dempsey, who “viciously assaulted and injured police officers” on Jan. 6, 2020? He got one. So did Julian Khater, who pepper-sprayed officers and pleaded guilty to two counts of assaulting police with a dangerous weapon. But — so far at least — the embattled attorney and former dean of Chapman University’s Law School (who allegedly set the frenzied crowds afire with his “fringe” legal theory that the vice president has the power to question, postpone and/or reject states’ official electoral votes), hasn’t gotten one, despite pointedly asking Rudy Guiliani for a spot on the “pardon list” some four years ago.
Sure, with Trump back in power and Jack Smith’s federal case against the Jan. 6 players kaput, Eastman doesn’t appear to face much federal jeopardy. Eastman’s big problem right now is that the California Bar is this close to revoking his law license, which could have the domino effect of losing his privileges to practice in Washington, D.C. (that’s what happened to Giuliani) and, perhaps, of dooming him to headline the right-wing speaking circuit for the rest of his days.
Eastman’s GiveSendGo “Legal Defense Fund,” which started some two years ago with a $200,000 ask, upped its goal to $1.5 million and has raised a smidge more than $911,000 to date.
Meantime, Eastman is the subject of a new film, birthright citizenship is front and center and his appeal of the State Bar judge’s ruling that he should lose his license for betraying the fundamental oaths he swore to uphold as a licensed attorney (spreading untruths about the 2020 election and trying to stretch the law like Silly Putty to keep Trump in power) is set for oral arguments on March 19.
The two sides filed their briefs on the matter shortly before Christmas, and therein bicker like erudite kids on the playground.
Each side accuses the other of spinning tall tales and misreading the law.
Eastman cloaks his maybe-true, maybe-not, I-did-my-best-with-the-information-I-had-at-the-time “election was-stolen” statements in the protective wrap of the First Amendment. The State Bar argues that the First Amendment does not protect attorney statements made with knowledge of, or reckless disregard for, their falsity.
Disbar him!
“Eastman’s misconduct in conspiring to disrupt and actually disrupting the 2020 electoral count, along with his repeated dissemination of false claims to support a false narrative of a stolen election and outcome determinative voter fraud and illegalities, strikes at the heart of what it means to be an attorney and compels disbarment,” the State Bar argued.
“He misused his license in a grave and injurious manner designed to undermine our democracy, subvert the peaceful transfer of presidential power, and thwart the will of the people in a free and fair election. In doing so, he betrayed the fundamental duties and oaths he swore to uphold, and he caused immeasurable harm to the public, election officials, and the legal profession.
“Eastman’s illegal, deceitful and intentional acts are unprecedented misconduct of the highest magnitude, including demonstrably contributing to the gravest threat to our democracy in modern history — the violent attack on the Capitol on January 6. This court should affirm culpability on all found counts of misconduct… apply aggravation for significant harm, and affirm the disbarment recommendation. Eastman’s misconduct shocked the conscience of the nation and is of such exceptional gravity that only disbarment will suffice.”
In a rather delicious footnote, the State Bar underscores the significant difference between saying, “X continues to say there was outcome determinative fraud or illegality,” and, “there was outcome determinative fraud or illegality.” A lawyer may state the former, which is true, but not the latter, which is false and misleading. the State Bar said
“Eastman’s arguments improperly ignore this difference,” the State Bar said.
Don’t disbar him!
The State Bar’s claim that Eastman knew his statements about election fraud were false is based on a logical fallacy, Eastman argued.
“Eastman acknowledged at trial that he ‘knew’ that some government officials had made statements that there was not outcome-determinative fraud and that the election was the most secure in the nation’s history…. then infers from Eastman’s knowledge of those statements that he also knew them to be true. There is nothing in the record (or otherwise) to support that inference. Quite the opposite. Dr. Eastman repeatedly testified that he believed the statements to be false,” his brief said.
The Supreme Court has repeatedly held that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need…to survive,’” he argues.
Eastman’s theories about the vice president’s ability to delay the electoral vote count, and about the ultimate power of state legislatures to control elections, and of states’ ability to send alternate electors to Washington, D.C., are not the stuff of moral turpitude, “but of advocacy of the sort that lawyers engage in every day, and that, on behalf of clients, they are ethically duty-bound to engage in,” he argued.
The State Bar judge was blatantly biased against him for his politics, he said, part of an effort to suppress dissenting legal perspectives. The disbarment proceeding was a sham designed to punish a constitutional scholar for his advocacy, and “perhaps the most politicized disbarment proceeding in California’s history.”
Eastman urged the Review Department, which will hear his appeal, to throw out the case.
Addendum
It’s worth noting here that things didn’t go well for Eastman’s stage-mate Giuliani when he was making similar arguments last year. Giuliani lost his law license in New York, and cannot practice in Washington, D.C.
But maybe this will be different.
If you’re interested in efforts to reframe Jan. 6, you might want to check out the new film that premiered earlier this month at Mar-A-Lago, with Trump in attendance: “The Eastman Dilemma: Lawfare or Justice.“
And Eastman’s infamous opinion — that the 14th Amendment does not confer automatic citizenship on babies born here, using Kamala Harris as an example — is having a moment with his erstwhile client Trump as well.
Will it stick this time? Seems like anything can happen in the “interesting times” we find ourselves navigating. But Eastman continues to face state charges stemming from his role in the 2020 election in Georgia and Arizona. While it might be nice to have a federal pardon from his former client in his back pocket, no federal pardon can make those state charges go away.
“Trump is showing some appreciation for the work Eastman did by allowing that independent organization apparently to rent space to show the documentary at Mar-A-Lago, and by attending the showing himself,” said James V. Lacy, an attorney and bona fide Reagan Republican in Laguna Niguel, who has been following the saga closely.
“But, I am of the opinion that Eastman hurt more than helped Trump by his involvement in 1/6/21. Eastman’s legal advice that the Vice-President possessed the power to set aside electoral votes remains very highly flawed, and the facts that came out in his California disbarment trial, with findings that he knowingly misrepresented facts in a filing to the U.S. Supreme Court, and also misled the Georgia Legislature on facts about election fraud in his testimony, remain.
“Those findings went beyond pure legal advice and on their own would support sanctions on his law license….
“Maybe Trump will now also preemptively pardon Eastman. John will surely benefit from the Trump Administration’s changes in enforcement at the Department of Justice, and the end of Jack Smith’s prosecutions. However, he is still under indictment in active state cases in Georgia and Arizona, and those cases will proceed this year, and they are not subject to presidential pardon.
“In the end, I think Eastman will be permanently disbarred in California this year, after appeals, based on the mountain of evidence developed at his trial,” Lacy said. “That will also mean that the U.S. Supreme Court, for whom he once clerked, will be forced to disbar him as well under their own well-established rules that a lawyer who has been finally disbarred by a state system cannot practice before it.”
On the other side of the aisle is the group that lodged the complaint with the State Bar against Eastman, kicking off the drama.
“John Eastman plotted to overturn the results of the 2020 election and undermine the choices of millions of Americans,” said Gillian Feiner, program director at the States United Democracy Center. “His actions were a betrayal of a lawyer’s oath to uphold the Constitution and his professional ethical obligations.
“Last year, the California Bar Court took away Eastman’s right to practice law in California based on those actions. The Court made the right decision then, and that decision should be upheld now. The current political landscape doesn’t change Eastman’s actions or undo the damage he’s caused to the legal profession and our democracy. Anyone who harms our democracy deserves to be held accountable.”
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