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John Eastman’s “It’s A Political Witch Hunt” Defense

Facing disbarment, Eastman seems poised to plead to "stupidity" and claim "witch hunt." But the California State Bar is unlikely to view stupidity as a valid reason to allow him to continue practicing law.
Published:January 29, 2023

Published with permission from Teri Kanefield. Read all of her brilliant writing here.

First, the most significant bit of news that went under the radar this week

The DOJ charged former FBI official Charles McGonigal with concealing $225,000 in cash that he received from an outside source. McGonigal was also charged with taking money from Oleg Deripaska, a sanctioned Russian oligarch, who, if you recall, was one of Paul Manafort’s clients and considered a link in the Trump-Russia story.

McGonigal joined the FBI in 1996. In 2006, he became the field supervisor of a counter-espionage squad at the Washington Field Office. From 2017 until 2018 he was the Special Agent in Charge of FBI counterintelligence efforts in the New York Office.

Considering what was going on with Comey and the New York office of the FBI during the 2016 presidential election (the investigation into Hillary Clinton’s emails) through 2018 and all Deripaska’s connections to Trump’s campaign through Manifort, your mind may be blown.

To connect the dots, I suggest reading Yale professor Timothy Snyder’s substack post (this entry is free). Snyder says, “We are on the edge of a spy scandal with major implications for how we understand the Trump administration, our national security, and ourselves.”

A John Eastman Refresher

Before I talk about the latest with John Eastman, you may want a refresher on his role in Trump’s plot to overturn the 2020 presidential election. I wrote this piece for The Washington Post shortly after we learned of the existence of the now-famous Eastman memo. (If you click here, you can get past the paywall; I made the article free through my subscription.)

This week, the State Bar of California has filed eleven disciplinary charges against Eastman. (The document is here.)

State Bar disciplinary actions start when someone files a complaint. The Bar then investigates. Lawyers are expected to abide by the code of professional responsibility for lawyers. (I guess that’s the cue for lawyer jokes). If there is a basis for the complaint (often there isn’t), the Bar first tries to resolve the issue informally. If that isn’t possible, they bring disciplinary charges and refer the case to the State Bar Court for a disciplinary hearing. One possible outcome is disbarment. There is also an appeals process if a person wants to contest an adverse judgment.

Here’s the chronology of Eastman’s complaint:

October 5, 2021A bipartisan group filed a complaint against Eastman with the California State Bar.

March 2022: The California State Bar announced a John Eastman ethics investigation.

January 26, 2023: The Bar filed charges against Eastman

(I added the chronology because a few people on Mastodon asked me how long these things take. They take a long time.)

Getting disbarred is a big deal. Lawyers facing this possibility generally hire a defense lawyer. This is particularly difficult for someone like Eastman who spent decades building his legal credentials. This is from the Federalist Society website:

Dr. John Eastman is the former Henry Salvatori Professor of Law & Community Service and former Dean at Chapman University’s Dale E. Fowler School of Law, where he had been a member of the faculty since 1999, specializing in Constitutional Law, Legal History, and Property. He is a founding director of the Center for Constitutional Jurisprudence, a public interest law firm affiliated with the Claremont Institute that he founded in 1999. He has a Ph.D. in Government from the Claremont Graduate School and a J.D. from the University of Chicago Law School, and a B.A. in Politics and Economics from the University of Dallas. He serves as the Chairman of the Board of the National Organization for Marriage.

Prior to joining the Chapman law faculty, Dr. Eastman served as a law clerk to the Honorable Clarence Thomas, Associate Justice, Supreme Court of the United States, and to the Honorable J. Michael Luttig, Judge, United States Court of Appeals for the Fourth Circuit and practiced law with the national law firm of Kirkland & Ellis. Dr. Eastman has also represented numerous clients in important constitutional law matters and has argued before the Supreme Court. On behalf of the Claremont Institute Center for Constitutional Jurisprudence, he has participated as amicus curiae before the Supreme Court of the United States, U.S. Courts of Appeals, and State Supreme Courts in more than one hundred cases of constitutional significance, including Boy Scouts of America v. DaleZelman v. Simmons-Harris (the school vouchers case), Kelo v. New London, Ct. (eminent domain), and Van Orden v. Perry (the 10 Commandments case). He has also appeared as an expert legal commentator on numerous television and radio programs, including C-SPAN, Fox News, PBS, NewsHour, and The O’Reilly Factor.

A reader on Mastodon asked me this:

Given Eastman’s credentials, why would he align himself with Trump and risk everything?

The likely answer is that he shares Trump’s political views and (like William Barr, Pompeo, and others) believes that Biden and the Democrats are more dangerous than the hard-core Republican views. Federalist Society members hold many libertarian views: They believe much of the federal government is illegitimate and unconstitutional. They think that liberals are destroying America.

People can be extremists and dangerous and have genuinely held political views.

No need for evidence beyond a reasonable doubt in disbarment proceedings

It will obviously be easier to disbar Eastman than convict him in a criminal court. The standards of proof in a criminal trial are high because people have a constitutional right to life, liberty, and property. Criminal punishment can deprive people of property (fines), liberty (prison sentences), and maybe even life (capital sentences).

There is (obviously) no Constitutional right to practice law, so the state bar can (and does) use lower evidentiary standards.

Basically, the California Bar allegations against Eastman are that he mislead courts and knew or should have known his proposed actions were illegal. The charges include failing to support the laws and constitution and misrepresentations that arise to the level of “moral turpitude.”

Aside: Don’t you love the phrase “moral turpitude? I realize that I have never used this phrase. What a lost opportunity, right? “Go to your room! You are engaging in acts of moral turpitude!”

Here are the facts given in the state bar charges (which I’ve edited and summarized):

Throughout December Eastman filed various court documents on Trump’s behalf alleging fraud even though he knew (or should have known) the allegations were false.

On or about December 232020, he wrote his two-page memo falsely asserting that Pence had the legal authority to reject electoral votes.

January 2, 2021: He appeared on the “Bannon War Room” radio program with tens of millions of listeners and lied about (nonexistent) election fraud.

January 3, 2021: He wrote and sent a 6-page legal memo to an attorney and strategic advisor to Trump’s 2020 presidential campaign with the intention of providing legal advice. This memo, too, stated that Pence had the legal authority to reject electoral votes. The memo also made false claims about election fraud.

January 4, 2021:  Eastman met in the Oval Office with Pence, Pence’s White House Counsel Greg Jacob, and Pence’s Chief of Staff Marc Short to discuss Eastman’s bogus theory that Pence could “take unilateral action that would result in Trump’s re-election.” Pence pushed back and said he did not have any such authority.

January 5, 2021: Eastman met again with Jacob and Short. During the discussion, Eastman conceded that the positions he was urging Pence to take were contrary to historical practice, violated several provisions of statutory law, and would likely be unanimously rejected by the Supreme Court.

[Important note: It is acceptable for lawyers to suggest a course of action contrary to established law and historical practice if they believe their theories have a legal basis. This is how lawyers get the Supreme Court to overturn past precedents.]

For example, in 1896, the Supreme Court held racial segregation constitutional if the separate facilities were equal (which they never were). For decades this was the established law.

When Charles Hamilton Houston and Thurgood Marshall set out to end segregation in America, they began by filing lawsuits alleging that facilities were unequal. After succeeding with these, they went after segregation itself by claiming that the 1896 case was wrongly decided. They went to the Supreme Court with Brown v. Board of Education. The theory they put forward, that separate can never be equal, was contrary to established law–but they had a good faith belief, which turned out to be correct, that the Supreme Court would agree with them.

This is why the allegations against Eastman are that he knew his theories had no legal basis and were, on their face, absurd, and if that wasn’t enough, the course of action he proposed was based on lies about election fraud.

January 6, 2021: Eastman spoke to the crowd on the Ellipse at the “Stop the Steal” rally and told a bunch of lies. (Lying is legal unless the lies were “directed to inciting or producing imminent lawless action.”)

January 6, 2021: Throughout the day, Eastman had a running text correspondence with Jacob in which he kept insisting that Congress should not declare Biden the winner but should “send the matter back to the states.”

Eastman Lost his Job

By January 13, 2021, under “increasing scrutiny” over his controversial involvement with Trump’s election claims, Eastman agreed to retire from Chapman University. He also had classes he was scheduled to teach at the University of Colorado Boulder canceled.

In the fall of 2021, The New York Times reported that, in a series of interviews, Eastman said that “he was continuing to investigate reports of election fraud and was writing a book on the subject.” He “insisted that his two-page memo, which he said he hastily wrote while on Christmas vacation with his family in Texas, had been taken out of context, but defended his view that Mr. Pence could have done far more to help Mr. Trump.”

I won’t be cowed by public opposition to it,” he said.

By the end of the year, he was raising money for his legal defense. He launched a subscription SubStack account. And on the Christian fundraising site GiveSendGo, he raised money for his legal bills, asserting that he’s being persecuted for trying to ensure a free and fair election. When he was reported to the California State Bar for ethical violations, he said that he was being “targeted by hardcore leftist activists … seeking to have him disbarred and thereby lose his source of income.”

He was arrogant. He was confident. He claimed he did nothing wrong. That was in 2021. In 2022, it became clear he was the subject of a criminal investigation.

What We Know About The Criminal Investigations

June 22, 2022: federal authorities seized John Eastman’s cell phone.

July 21, 2022: We learned that Marc Short and Greg Jacob, lawyer to Pence, appeared before a federal grand jury investigating the Jan. 6 attackSome of the questions focused directly on the extent of Trump’s involvement in the fake-elector effort led by his outside lawyers, including John Eastman and Rudy Giuliani, these people said.

Eastman himself appeared before the Fulton County grand jury and is reportedly a subject of that investigation as well. Once he understood that he was under investigation, he decided to shut up.

Eastman stands on the Fifth Amendment in Depositions

In a deposition taken on March 2, 2022, in connection with a civil lawsuit brought by Bennie Thompson, Eastman stood on the Fifth in response to every question “on the advice of counsel.”

Similarly, he stood on the Fifth when testifying before the January 6 committee.

The “I Was Stupid” Defense

According to a more recent New York Times piece, the crux of Mr. Eastman’s defense is that he was simply a lawyer offering advice and that he was acting in good faith, and in fact, he still believes everything he said.

On Thursday, a Wall Street Journal writer reported that he would be holding a press conference to defend himself. I was eager for the press conference because nothing would be stupider than offering a press conference, and Eastman is not stupid.

Eastman did not, in fact, hold a press conference.

The “I really believed everything I was saying” defense is unlikely to work in a state bar proceeding where the evidentiary standards are lower. “I was stupid” is not a good reason to keep your law license. (Cue more lawyer jokes.)

On the other hand, in a criminal trial, “I really believed my nonsense” has a better chance of working, depending on the mens rea requirement for whatever charges are ultimately brought against Eastman. (I am not saying it will work. I’m saying that the defense has a better chance in criminal court, where the evidentiary standards are higher.)

“It’s a Political Witchhunt” Defense

Political prosecution is when the government uses prosecution to (1) frighten potential supporters of a political movement, (2) discredit a political movement, and/or (3) compel its members to spend time, money, and energy avoiding conviction and imprisonment.

Given the language from Eastman’s fundraising pleas, it appears that he will offer a political prosecution defense: He will claim that the legal theories he put forward leading up to January 6, 2021, were informed by his political views and were perfectly legitimate, and he is being targeted by left-wing activists. He will claim that his political views are aligned with Trump’s, and he believed that Trump should remain in office, so he was looking for a loophole in the law to allow it. In other words, he will claim that he was being a zealous advocate for his client (Trump), and people want to prosecute him because he holds federalist society ideals.

Whether he can succeed with a political prosecution defense in court depends on whether or not there is evidence beyond a reasonable doubt to support any charges.
I expect his defense to work in the Court of Right-Wing Opinion. People who donated to Eastman’s legal fund wrote things like this: “All witch hunt. Mike Pence is BAD. Wish you the very best of everything you do” and “Thank God for patriots like Prof. Eastman.”

This brings me back to a point I often try to make: If the evidence is there, Eastman needs to be prosecuted—but don’t make the mistake of thinking that these prosecutions will end the threat of right-wing extremism in America. This is particularly true because the outcome of a trial is always uncertain. What if Eastman is acquitted? It can happen. Look at the acquittal of Kyle Rittenhouse. 

“Charging decisions are imminent”

This week, Fulton County District Attorney Willis asked a court not to release a grand jury report because “charging decisions are imminent” and releasing the report could interfere with the rights of potential defendants to a fair trial. I expect Trump and Guiliani to be among those indicted in Georgia.

Anthony Michael Kreis, a law professor at Georgia State Law School, who has been watching the Fulton County investigation closely, said this:

It is unlikely that Eastman avoids prosecution if Willis proceeds with conspiracy to commit election fraud charges. That said, this might be one of the harder cases for her to bring without a clear narrative about who was pulling the strings and when.

The question on everyone’s mind: Who will be charged in Fulton, Georgia?

I just want you to know that I hate waiting. I hate suspense. I want to know now.