This week was the start of the State Bar of California’s live-streaming trial seeking to disbar John Eastman for allegedly violating his ethical duties as an attorney in his role in challenging the results of the 2020 presidential election on behalf of Donald Trump’s campaign. The charges boil down to accusations that Eastman failed to uphold the Constitution and U.S. laws by advancing facts and/or legal theories he knew to be false, and further, advising his client to act based on these falsehoods.
California State Bar attorney Duncan Carling claimed Eastman attempted to help Trump steal an election he knew Trump had lost. The bar’s evidence, according to Carling? That Eastman’s “entire course of conduct” was designed to halt the congressional count of electoral votes. At the time of Eastman’s efforts, there was considerable public controversy about the ballot counting in half a dozen key states, with a large number of allegations of “election irregularities” submitted in affidavits, and Eastman and many others were calling for state legislatures to conduct full audits.
The California State Bar’s prosecution of Eastman assumes it was frivolous and in bad faith for Trump campaign election lawyers to push for such audits and try to get Vice President Mike Pence to either “reject or adjourn”: that is, reject electors from specific states on Jan. 6, 2021, or adjourn that day’s proceedings so state legislatures could investigate the numerous allegations of misconduct in their states.
Although Democrats may today cheer Eastman’s prosecution, disbarment would be a terrible precedent, effectively chilling lawyers from zealously advocating for their clients, afraid to advance novel legal theories because of their clients’ politics.
Setting a Dangerous Precedent
For instance, in his examination of Eastman himself, Carling questioned Eastman’s judgment that the state legislatures had any authority to overturn the certifications that had been made by state election officials. Eastman, a decades-long constitutional scholar, schooled Carling in this area.
In Pennsylvania, state election officials had changed election procedures contrary to existing state statutory law, justified in large part by Covid-19 precautions. The partisan Pennsylvania Supreme Court sided with election officials. But Eastman and many other legal observers pointed to the specific wording of Article II of the U.S. Constitution that “Each State shall appoint” its electors “in such Manner as the Legislature thereof may direct.”
At the time, this did not appear to be such a frivolous view as to impugn the integrity of lawyers making the argument, let alone grounds for revoking their bar licenses. In fact, 18 states brought suit challenging the Pennsylvania election results on such grounds. The California Bar’s failed attempt to implicate Eastman with the brief filed in Texas v. Pennsylvania (Eastman was not its author) obscures more serious questions.
Does the U.S. Supreme Court’s dismissal of those suits somehow make those arguments unethical and grounds for disbarment? Recall that the court dismissed this suit on prudential “standing” grounds, not on the substantive merits. Should lawyers be sanctioned for failing to anticipate the court’s ruling on standing grounds? Of course not, but that’s the California Bar’s slippery slope now threatening future lawyers.
As a sign that the California Bar’s case is little more than a political witch hunt, on day one of the Eastman trial, Carling attempted to ridicule this “independent state legislature” theory, even though the U.S. Supreme Court is presently considering this theory in Moore v. Harper involving North Carolina’s redistricting. Do we really want a legal system where lawyers can lose their licenses for advancing novel constitutional arguments because they are parroted by violent protesters? Or only when protesters attack the Capitol? And even when such so-called insurrection coincides with gross security failures by the Capitol Police and infiltration and perhaps instigation by the FBI?
How about the view that the Constitution gives the vice president unilateral authority to reject electors or delay the counting of their votes while state legislatures conduct their own audits? Article II commands the vice president to “open all the [Elector] Certificates, and the votes shall then be counted” but also provides that “[t]he Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes.”
What About Existing Precedent?
On day two of the trial, Gregory Jacob, Pence’s former counsel and now witness for the California Bar, testified about his discussions on Jan. 5 and 6, 2021, with Eastman about the scope of Pence’s authority to reject electors or adjourn for some days. They discussed law review articles published over the years, the relevance of the 12th Amendment, the constitutionality of the Electoral Count Act (ECA) of 1887, as well as various hypotheticals going back to Jefferson. What becomes clear is the paucity of case precedent and the surplus of conjecture.
On examination, Jacob never discussed or even mentioned a rather telling precedent: When the results of the 1876 presidential election were in doubt, Congress created a special Electoral Commission made up of five House members, five senators, and five Supreme Court justices to investigate. Did this solution violate Article II or the 12th Amendment? While it’s not contemplated by the ECA, is the ECA even compatible with the Constitution? In light of the California Bar’s prosecution of Eastman, is there room for lawyers to make any such legal arguments without fear of future disbarment?
Jacob referred to repeated Democrat attempts to have Congress stop the electoral count, including in 2001, 2005, and 2017. Some of those attempts were made by Democrat House members who were also members of the California Bar and never faced disbarment or even investigation for advancing the untried theory that Congress itself could overrule state election officials in determining the electors. In 2001, then-Vice President Al Gore presided over the Jan. 6 electoral vote count that gave the election to George W. Bush against Gore himself. According to Jacob, Gore refused to recognize some of those objections since not one senator had objected.
One wonders what would have happened had one or more senators objected in 2001. Would Democrat lawyers have then taken the position that the vice president had the authority to reject or adjourn? If so, would that have been grounds for disbarment in states with bar associations controlled by Republicans?
On Jan. 6, 2021, a number of House Republicans objected to the counting of electors submitted by states where numerous affidavits had been submitted alleging significant election misconduct and irregularities. No senator objected prior to the assault on the Capitol, which required an adjournment of some hours. After the assault ended and the adjournment was over, no senators dared to object, perhaps lest they be unfairly impugned for inciting insurrection.
A Rush to Judgment
Ultimately, the California Bar is not prosecuting Eastman’s constitutional arguments, but his alleged incitement of the Jan. 6 “insurrection.” Jacob himself referred to Eastman’s remarks on the morning of Jan. 6 at the White House Ellipse that a vice president who rejected the responsibility of scrutinizing electors would not deserve to be in that office.
Hours later, while evacuated from the Capitol to a secure location, Jacob started writing an unpublished op-ed. He testified at Eastman’s trial that he was offended for the law profession by the legal advice Eastman had offered. It’s one thing, Jacob said, to push theories in a law review article, for example, that the Federal Reserve and the debt ceiling are unconstitutional, but quite another to push such views in advice to a president.
As someone who has articulated the constitutional argument against the Federal Reserve in several law review articles, I find Jacob’s view chilling and disquieting. Who gives Jacob or any bar association the authority to decide when a lawyer’s arguments have impermissibly crossed some red line from acceptable scholarly theorizing to incendiary legal advice to a political actor? The California Bar’s prosecution of Eastman is a David versus Goliath battle, the machine with its huge financial resources against a lawyer for his zealous advocacy for a client deemed politically incorrect by establishment authorities and institutions. Not surprisingly, Eastman has been forced to solicit donations for his defense costs at GiveSendGo.
I served a decade ago as associate dean for academic affairs at Chapman University while Eastman was the dean. I was a progressive Democrat at the time and Eastman a conservative Republican. We disagreed on many issues of law and public policy, but it did not prevent us from working together to help Chapman skyrocket from the fourth to the second tier in law school rankings. For a while at least, Chapman was a rare law school culture where you could hate the message without hating the messenger.
Hatred for Trump has been used, often cynically by people who should know better, to justify all kinds of wrongs by the haters. In explaining why he never sought to have his Jan. 6 op-ed published, Jacob testified that he felt “there should be no rush to judgment, the hallmark of the hideous cancel culture.”
Ironically, two and a half years later, the California Bar’s hatred of Trump and its embrace of an establishment election narrative has resulted in a rush to judgment in its persecution of Eastman on issues that may require years, if not generations, to sort out and crystalize through historical experience and case precedent.