LOS ANGELES — John Eastman sat between his lawyers — a laptop open before him, a pen and pad within easy reach — as the California State Bar put him on trial early Tuesday for alleged “dishonesty and moral turpitude.”
Eastman, former dean of Chapman University’s law school and alleged architect of Donald Trump’s attempts to reverse his 2020 election loss to Joe Biden, wore a dark suit, occasionally peering over his wire-rimmed glasses at the judge who’ll decide if he loses his law license.
Did Eastman knowingly make false statements about election fraud leading up to the Jan. 6 insurrection? Did he intentionally file “frivolous” lawsuits misstating facts in courts?
As Eastman’s disciplinary trial got under way before California State Bar Court Judge Yvette Roland, a little after 10 a.m., his attorney, Randall A. Miller, tried to convince Roland to admit the “expert” testimony of people the judge previously said were not experts.
The certified public accountant who had never before examined election data for fraud, but would testify that there were irregularities? Eastman’s attorney argued that it’s numbers in, numbers out, whether it’s financial or election data. The judge did not agree. Without any previous experience or expertise analyzing election data, how would a novice know what was normal and what was not?
The proceedings took a break after a little more than an hour of “housekeeping,” as the judge put it. Eastman is expected to take the stand later today and testify in his own defense, and he will ask for the charges to be dismissed.
Eastman has wrapped himself in the First Amendment, saying his opinions are protected as a matter of free speech. And Eastman’s attorney, Miller, repeatedly told the judge that Eastman’s acts and utterances must be viewed through the lens of tenability.
“Were Dr. Eastman’s acts tenable?” Miller said. If any lawyer, “any lawyer,” he stressed, made statements that “have arguable tenability, then the lawyer can’t be disciplined for taking those actions that are well within his obligation to be a zealous advocate, to advance his client’s interest. If they have a basis in fact and would be found tenable, then charges can’t be brought.”
In his opening statements, Miller said that, in addition to tenability and free speech, this case is revolves around two other vital issues: an attorney’s responsibility to advocate for his client, and his right to petition.
The infamous memos that Eastman drafted — exploring various ways the vice president might postpone or halt the peaceful transfer of power so states Trump narrowly lost could examine what Eastman described as “illegalities” that may have affected outcomes — were simply meant for internal discussion, a matter of honest scholarly debate about the powers of the vice president under the 12th Amendment, Miller argued.
(A sample from the first Eastman memo: “VP (Mike) Pence, presiding over the joint session … begins to open and count the ballots. When he gets to Arizona, he announces that he has multiple slates of electors…. At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States… Pence then gavels President Trump as re-elected. Howls, of course, from the Democrats….”)
“Lawyers get to argue debatable issues, which is what Dr. Eastman did,” Miller said.
The State Bar does not agree.
“Evidence will show his legal theory, that the vice president can reject or delay the electoral count, was baseless, completely unsupported by history, precedent or law, and contrary to our values as a nation,” said the State Bar’s attorney, Duncan Carling.
Eastman sought to avoid any public test of his theory, and confessed to Pence’s attorney that it had no chance of surviving a court challenge. He was fully aware his plan was damaging the nation, and even after violence erupted at the Capitol — putting Pence, his family and members of Congress in danger, Eastman continued to press “his illegal scheme” and blamed Pence for the chaos.
“The campaign to overturn the election was multi-faceted and deliberate, and became more desperate as courts, officials, and legislators around the country rejected (Eastman) and his client’s efforts to keep Trump in power after he lost the election,” the State Bar said in filings.
“This strategy included, among other dishonest and unlawful acts, promoting false conspiracy theories and allegations of fraud, filing frivolous and deliberately untimely litigation that was certain to and did fail, pressuring state officials to violate their duties to certify accurate election results, and urging state legislators in states that Biden had won to declare ‘failed’ elections and appoint Trump electors contrary to those states’ respective election results.
“When these efforts failed, and as it became clear that the Electoral College count would be certified for Biden, (Eastman) and Trump conspired to devise and implement a plan to pressure Vice President Pence to reject, without any legal or factual basis, properly certified slates of electors from states Trump had lost, or to delay the electoral count purportedly to allow state legislatures to investigate already rejected and frivolous claims of fraud and illegality.”
“It is no overstatement that democracy stood on the precipice. Had Vice President Pence followed respondent’s baseless advice…, the country would have plunged into a ‘profound constitutional crisis.’ (Eastman) and Trump’s plan violated our nation’s most fundamental commitments to the rule of law and the orderly transition of power. And it rested upon transparently false claims of election fraud that continue to harm our democracy to this day.”
All of Eastman’s conduct was “fundamentally dishonest,” the Bar’s Carling said, and breached the most important ethical duties of attorneys: Honesty and adherence to the rule of law.
The State Bar will ask for Eastman’s disbarment, he said.
That’s exactly what needs to happen, according to Christine P. Sun, senior vice president at the States United Democracy Center.
“Eastman knew all along, or chose to ignore, that the 2020 election was free, fair, and secure. He chose to betray our democracy and his professional responsibilities as an attorney,” she said in a prepared statement. “Our democracy was pushed to the brink … and John Eastman helped to push it there. He must be held accountable.”
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