Trump co-defendant takes digs at former president in requesting speedier timeline in Georgia election case

November 28, 2023 By Zoë Richards 3 Comments

Ex-Trump attorney John Eastman urged the court to set an earlier final plea date, calling the Fulton County District Attorney’s Office proposal of June 21 “arbitrary and capricious.”

John Eastman, a co-defendant of Donald Trump in the Georgia election interference case, appeared to take a dig at the former president in a filing Monday that pressed the court for a faster schedule next year.

In the filing, Eastman attorney Wilmer Parker III said that the final plea date should be set earlier in the year “so that Defendants who do not have lifetime United States Secret Service protection and who are not running for election to an office can exercise and have their right to a jury trial completed within 2024.”

Scheduling an earlier final plea date and severing the defendants into two groups would allow “more than enough time” for the court to try two trials without Trump, Parker argued. Prosecutors are seeking to try all the defendants together.

“Without Defendant Trump in the courtroom the U.S. Secret Service will not be involved in providing enhanced security, and the trials will proceed faster,” Parker wrote.

Fulton County District Attorney Fani Willis this month requested an Aug. 5 start date for the trial and a final plea hearing date of June 21. She argued that the proposed timeline “balances potential delays from Defendant Trump’s other criminal trials…and the other Defendants’ constitutional speedy trial rights.”

Eastman’s attorney wrote Monday that “waiting until June 21 … is both arbitrary and capricious.”

A spokesperson for the Fulton County District Attorney’s Office nor a campaign spokesperson for Trump responded to requests for comment Monday.

Trump’s lawyers have opposed Willis’ proposal and asked for a hearing to argue against her motion.

Trump has pushed unsuccessfully to delay various legal challenges until after the election, arguing that earlier trial dates amount to election interference. His federal election interference case is scheduled to begin in March, while his classified documents case is slated for May.

Click here to read the full article in NBC News

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California bar finds John Eastman culpable for misconduct — setting up possible disbarment

November 3, 2023 By Matthew Chapman 16 Comments

The California State Bar has found pro-Trump attorney John Eastman culpable for ethics violations and misconduct in his plot to help former President Donald Trump overturn the 2020 presidential election, reported MSNBC legal analyst Tristan Snell on X.

The next phase is determining penalties for Eastman, which could range from a suspension to permanent revocation of his law license.

Eastman, a far-right former law professor, was the author of an infamous memo laying out a six-step plan to throw out electoral votes for then President-elect Joe Biden and kick the election to Trump — even while he purportedly privately admitted the plan was against the law.

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All of this comes at the same time Eastman is facing criminal charges in the Georgia election racketeering case brought by Fulton County District Attorney Fani Willis, which also charged Trump and several other GOP attorneys and party activists.

While all this has been going on, Eastman also got more bad news this month, as the Supreme Court declined to vacate court rulings that resulted in Eastman’s emails being turned over to the former House Select Committee on January 6.

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Trump’s crooked lawyers are reason to reform the field

October 30, 2023 By Margaret Tarkington 4 Comments

Three recent guilty pleas show the crucial role attorneys played in the plot to overturn the election.

Over the last two weeks, Jenna Ellis, Kenneth Chesebro and Sidney Powell, three lawyers central to Donald Trump’s attempt to overturn the 2020 election, pleaded guilty in the Georgia racketeering case against the former president and 18 co-defendants. All admitted significantly lesser crimes than charged and escaped prison time.

Prosecutors may be more interested in Trump himself, but the lenient plea deals fail to comport with the culpability of these and other lawyers in Trump’s plot against the election. Eight attorneys were indicted in the Georgia case, and the federal indictment of Trump in the Jan. 6 plot includes five attorneys as unindicted co-conspirators, unnamed but identifiable as Powell, Chesebro, Rudolph W. Giuliani, John Eastman and Jeffrey Clark.

Lawyers weren’t just involved in Trump’s plot; they devised and enabled it. Lawyers developed the strategies, manufactured a faux constitutional crisis and manipulated legal requirements in the effort to keep Trump in power and give his attempted coup the trappings of legality and legitimacy.

Only lawyers could have performed these services.

It was clear that Trump had lost the 2020 election by early December of that year. But rather than accurately advise him that there were no further legal options, Chesebro circulated a memo outlining a plan that would circumvent court losses, subvert states’ certified electors and allow Trump to win. What could transform defeat into victory? The lawyer’s craft: manipulation of law and fact.

Tellingly, the attorney co-conspirators have protested that they were just providing legal advice. Before her tearful guilty plea on Tuesday, Ellis asserted that the Georgia indictment was “criminalizing the practice of law.” Chesebro once contended that their advice was simply “the kind of war-gaming that attorneys do.”

Despite these lawyers’ readiness to help Trump overturn the election, the judiciary had proved fairly impervious to his assault of over 60 postelection lawsuits. That wasn’t happenstance. Lawyers are required by the rules of procedure and professional conduct to have a reasonable basis in law and fact for anything they submit in court. They also have a duty of candor to the court requiring them to identify controlling contrary arguments.

But attorneys’ advice to clients has been treated differently. Lawyers violate the rules on advice only if they “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” That means lawyers can even advise clients to engage in illegal conduct as long as they don’t know it’s criminal or fraudulent. Moreover, lawyers are not required to have a reasonable basis in law and fact for their advice or to identify contrary precedents.

This is particularly problematic in the context of legal advice to government officials regarding the use of their power. Such advice shapes the use and abuse of government authority, which belongs not to officeholders but to the people.

With the exception of Clark, who worked for the Justice Department, the implicated attorneys were private-sector practitioners advising the president. Because they didn’t formally work for the government, they weren’t bound by federal regulation of government attorneys or the entity rule, under which a government lawyer has a duty to the government itself and not merely an official.

Even when advising Trump as to the use of government power, these private attorneys had no duty to anyone but Trump. Consequently, they acted entirely in Trump’s personal interests, bending law and fact to his interests, even against the interests of the government and people.

Take the false elector scheme outlined in Chesebro’s Dec. 6 memo. Eastman, Giuliani and Ellis would all join Chesebro in advising or implementing the plan, with Eastman drafting his own now infamousmemos. The plan was to recruit fake electors in seven states and assert that Vice President Mike Pence had the power to refuse to count the supposedly disputed electoral slates.

Chesebro emailed detailed instructions for the false electors for each state to make sure they cast their votes in the manner set out by law and provided counterfeit elector certificates to print and sign. The idea that this technical “compliance” with law would somehow render these slates legal would be laughable if it weren’t so dangerous. Chesebro had the phony electors sign certifications that they were “the duly elected and qualified Electors” from those states, which theyemphatically were not.

These electoral slates were a machination that the lawyers treated as fact and the basis for their advice that “7 states” had “transmitted dual slates of electors.” In fact, not a single state or authorized representative had created or certified these slates. Eastman nevertheless advised, “The fact that we have multiple slates of electors demonstrates the uncertainty of either,” lending the counterfeit slates the same efficacy as those certified by the states. This advice would have usurped the states’ constitutional power to elect the president and given it to the federal executive branch.

The attorneys’ advice also incorporated the false assertions that the election was stolen or fraudulent. Attorneys promoting a radical scheme to disenfranchise more than 26 million voters had a duty to ensure that their advice was grounded in fact.

Most government officials have at least qualified immunity for actions taken in carrying out their duties. Knowing that officials might not be held accountable for their actions should compel lawyers to act with even greater fidelity to both fact and law when advising government clients. Preposterously, Trump is now asserting immunity for “organizing” the false electors.

If lawyers can manipulate law and fact to justify whatever a government official wants, then official immunities can become a license for oppression, abuse and lawlessness backed by the full weight of government power.

Trump certainly wanted to stay in power at all costs and refused the counsel of many good lawyers and advisors who told him he had lost. But what if Chesebro, Eastman, Ellis and Giuliani had told him the same thing?

Trump would have had nowhere to go. He could not have come up with the false elector scheme on his own. He could have fired off angry tweets, ranted at rallies and thrown dishes and ketchup, but he couldn’t have undermined the electoral process without the lawyers who crafted the plan.

And without the phony electors, none of the efforts to use them to undo Joe Biden’s victory would have occurred: no pressuring of Pence to reject the votes, no rally in Washington to “encourage” him in that direction and no storming of the Capitol.

State bars can begin to respond to these glaring deficiencies by enacting professional conduct rules for lawyers advising government officials, including private lawyers. These rules should specify that lawyers owe a duty to the public to uphold the integrity of our constitutional system and the office being advised. The rules must require lawyers to have a good-faith basis in both law and fact for their advice. And state bars should discipline lawyers who don’t.

Click here to read the full article in the LA Times

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‘Trump Would Be Better Off If He Had Never Met John Eastman’

August 29, 2023 By Teri Sforza 1 Comment

Column: As Eastman’s legal exposure increases, a conservative lawyer and former Trump delegate illuminates Eastman’s ‘three major rookie blunders’

True, former President Donald Trump’s mug shot is generating more cash than John Eastman’s mug shot — while Trump glowers, Eastman looks more like one of those stone heads on the graves in Disneyland’s Haunted Mansion — but the former Chapman Law dean isn’t doing too shabbily on the fundraising front:

Tens of thousands in small donations have poured in over the past week, helping Eastman surpass his half-million dollar “legal defense fund” target. He set a new goal of $750,000.

It appears he’ll need it.

Eastman faces a slew of criminal charges in Georgia, including violating the state’s RICO Act, filing false documents, soliciting a public officer to violate the oath of office and other criminal conspiracies.  Fulton County District Attorney Fani Willis charged Eastman, Trump and 17 others with scheming to subvert the will of Georgia voters in an illegal bid to overturn Trump’s 2020 election loss there. They are scheduled to be arraigned Sept. 6.

More criminal charges could be forthcoming in federal court for Eastman, and he’s currently fighting charges of “dishonesty and moral turpitude” as the California Bar tries to yank his law license.

This bar trial is fascinating stuff, offering a sneak peek at the defenses Eastman will mount in criminal court(s) — and it has some legal observers thinking that Eastman is in big, big, big trouble.

Eastman and his lawyers argue that his legal advice to Trump — including memos theorizing that the vice president has power to delay election certification and send matters back to the states for a potential do-over and that states could send alternate electors (for the losing candidate) to the Capitol even after election results are certified by those states. etc. —  wasn’t unreasonable, and his opinion that there was massive fraud in the election is a matter of free speech.

Experts for the bar say it’s quite clearly otherwise.

“No reasonable lawyer exercising diligence appropriate to the circumstances would adopt Mr. Eastman’s legal positions,” wrote constitutional scholar Matthew A. Seligman in a report for the bar.

Months into his bar trial, Eastman asked the judge to halt trial until the Georgia criminal case concludes — to, you know, avoid incriminating himself. The judge declined. It’s apparently a bit too late for that.

Eastman “has testified for over 8 hours … not once invoking his Fifth Amendment privilege or making any such objection to his testimony thus far,” the judge wrote. “It is firmly established that a witness cannot choose to testify willingly about a topic … and then later claim the right to remain silent under self-incrimination privilege. …

“The act of testifying results in a forfeiture of the privilege for the subjects discussed.”

‘Three major rookie blunders’

And among Eastman’s “three major rookie legal blunders,” Laguna Niguel attorney James V. Lacy tells us, is this testifying in the disbarment proceeding bit.

Taking the stand for more than eight hours after zipping his lips and invoking the Fifth Amendment before the House Jan. 6 committee was probably, at best, unwise.

“Clearly Eastman was headed for a criminal trial, the House even referred him to the Justice Department!” said Lacy, whose conservative bona fides include serving in the Reagan and Bush administrations and as a Trump delegate in 2016.

Yet, somehow, for some reason, Eastman didn’t seek to postpone the disbarment trial, and then proceeded to talk, talk, talk. “Once that horse is out of the barn, any decent lawyer knows the Fifth Amendment defense as to what has already been said is out the window,” Lacy said.

Eastman’s other two major rookie legal blunders, in Lacy’s opinion, are as follows:

“Being a cheapskate and using the Chapman.edu server to send and accept attorney-client privilege messages about Trump’s post-election legal strategy. That all should have been done on his own secure confidential server. It is an inexcusable violation of client expectations of attorney confidentiality to send confidential messages over a server you do not control, let alone one that is owned by a public nonprofit educational institution,” he wrote to us.

Then, Eastman sued in federal court in an attempt to keep those Chapman emails confidential — which turned out to be way worse than shooting yourself in the foot. He got nowhere, almost all the emails were divulged anyway, and he put himself — and his client, Trump — in a far worse position by setting the stage for Judge David O. Carter to write that Eastman and Trump “more likely than not” committed a crime by trying to stop the vote certification on Jan. 6.

“If Eastman had used a secure system, or never filed the litigation to try to fix it, Carter would never have had a platform to write that,” Lacy said.

Lacy’s not saying that’s legal malpractice, but someone else might.

‘Awful legal advice’

Lacy has known Eastman for years. They met in D.C. in the 1980s, they vied for the same congressional seat in the 1990s, have had a “decent” relationship, with Lacy even taking on one of Eastman’s Chapman law students as an intern, who Lacy hired and who remains on the firm’s staff today.

“As a person who has supported Trump in the past, I am deeply saddened by this awful legal advice he gave to Trump,” Lacy said. “If Eastman was never in the picture, never gave any such legal advice … Trump would be in a far better political position today. Two of the four indictments would never have even happened.

“I’ve known John a long time,” Lacy continued. “He’s been very strong on extreme legal theories and trying to normalize them. Not just with this bit of the vice president having power to reject electors, but his philosophizing that state legislatures have unlimited power. … It’s just not true. Both of those are contrary to the underpinnings of our democracy.

“How could you say it’s democracy at all if it doesn’t provide for judicial review, for fairness? How can you say the vice president can set aside certified state electors? How can you say that, and say you’re a conservative and believe in state’s rights?”

Eastman didn’t just propose a theory on how to postpone or set aside certified election results from seven different states. He provided legal advice that he didn’t really believe in — in emails to the vice president’s lawyer, Eastman concedes that not one Supreme Court justice would agree with him — and took “overt acts,” Lacy said.

Eastman contacted state officials, helped organize alternate slates of Trump electors, testified to state legislators, was “a serpent in the ear of the President of the United States, the most powerful office in the entire world,” as the vice president’s attorney said.

“I can say flat out that Trump would have been so far better off politically if he didn’t have this 1/6 albatross around his neck, that was really created by Eastman,” Lacy said. “Even if Trump wanted to interfere in the outcome of the election, without those two (Eastman) memos, there’s no path to it.

“Trump would be better off if he had never met John Eastman.”

A judge set a March 4 trial date for Trump in the federal case charging the former president with trying to overturn the results of the 2020 election.

On Eastman’s defense that his opinions on massive fraud et al are a matter of free speech, Lacy says this:

“The zero-in point is coupling all his overt acts like helping prepare fake state elector certificates and calling legislators. The overt acts, like yelling ‘Fire!’ In a theater when you know there is no fire, makes the speech/advice no longer protected by the First Amendment.”

‘Contribute (or contribute again!)’

Eastman and his attorneys beg to differ there, of course.

“(W)e sought to have investigated what Vice President Mike Pence described as ‘serious allegations of voting irregularities and numerous instances of officials setting aside state election law.’  Doing that is speech and petitioning the government for redress of grievances fully protected by the First Amendment of the Constitution,” Eastman wrote on his fundraising blog.

“But the narrative being foisted on us by the left and by the anti-Trump right doesn’t care about constitutional rights, free and fair elections, presumption of innocence, or any of those other basic components of our system of government. That mentality needs to be confronted head on, and with your help, I’m doing all that I can….

“Keep us in your thoughts and prayers. And if you can, contribute (or contribute again!) to the legal defense fund and encourage your friends to do the same. Estimates from the various lawyers with whom I have spoken over the past week indicate this may cost $1 Million or more.”

After his booking in Georgia, Eastman vowed to vigorously contest every count of the indictment. “I am confident that, when the law is faithfully applied in this proceeding, all of my co-defendants and I will be fully vindicated,” his statement said.

Others aren’t so sure. Lacy thinks Eastman should have simply resigned his bar membership rather than agree to testify at the disbarment trial. Eastman is licensed to practice law in Washington, D.C.  He doesn’t really need a California law license.

The best thing Eastman can do now — not just for himself, but for Trump and everyone else — is to shut up, Lacy said.

We’ll see how that plays out at the State Bar. His trial resumes Sept. 5.

Click here to read the article in the OC Register

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Attorney John Eastman Surrenders to Authorities on Charges in Georgia 2020 Election Subversion Case

August 22, 2023 By Kate Brumback 3 Comments

ATLANTA (AP) — John Eastman, the conservative attorney who pushed a plan to keep Donald Trump in power, turned himself in to authorities Tuesday on charges in the Georgia case alleging an illegal plot to overturn the former president’s 2020 election loss.

Eastman was booked at the Fulton County jail and is expected to have an arraignment set in the coming weeks in the sprawling racketeering case.

He was indicted last week alongside Trump and 17 others, who are accused by Fulton County District Attorney Fani Willis of scheming to subvert the will of Georgia voters in a desperate bid to keep Joe Biden out of the White House. It was the fourth criminal case brought against the Republican former president.

Trump, whose bond was set Monday at $200,000, has said he will surrender to authorities in Fulton County on Thursday. His bond conditions prohibit him from intimidating co-defendants, witnesses or victims in the case, including on social media. He has a history of attacking the prosecutors leading the cases against him, including Willis, often using racist language and stereotypes.

Eastman said in a statement provided by his lawyers that he was surrendering Tuesday “to an indictment that should never have been brought.” He lambasted the indictment for targeting “attorneys for their zealous advocacy on behalf of their clients” and said each of the 19 defendants was entitled to rely on the advice of lawyers and past legal precedent to challenge the results of the election.

A former dean of Chapman University law school in Southern California, Eastman was a close adviser to Trump in the run-up to the Jan. 6, 2021, attack on the U.S. Capitol by the president’s supporters intent on halting the certification of Biden’s electoral victory. He wrote a memo laying out steps Vice President Mike Pence could take to interfere in the counting of electoral votes while presiding over Congress’ joint session on Jan. 6 in order to keep Trump in office.

The indictment alleges that Eastman and others pushed to put in place a slate of “alternate” electors falsely certifying that Trump won and tried to pressure Pence into rejecting or delaying the counting of legitimate electoral votes for Biden, a Democrat.

Bail bondsman Scott Hall, who was accused of participating in a breach of election equipment in rural Coffee County, also turned himself in to the Fulton County Jail on Tuesday morning.

Two other defendants, former Justice Department lawyer Jeffrey Clark and former Georgia Republican Party chair David Shafer, have filed paperwork to transfer the case to federal court. Willis has filed paperwork in Fulton County Superior Court, where the indictment was filed, seeking a March 4 trial date. Legal maneuvering, such as the attempts to move the case to federal court, could make it difficult to start a trial that soon.

Lawyers for Clark argued in a court filing Monday that he was a high-ranking Justice Department official and the actions described in the indictment “relate directly to his work at the Justice Department as well as with the former President of the United States.” Shafer’s attorneys argued that his conduct “stems directly from his service as a Presidential Elector nominee,” actions they say were “at the direction of the President and other federal officers.”

Former White House chief of staff Mark Meadows last week made similar arguments in a federal court filing, saying his actions were taken in service to his White House role.

Clark was a staunch supporter of Trump’s false claims of election fraud and in December 2020 presented colleagues with a draft letter pushing Georgia officials to convene a special legislative session on the election results, according to testimony before the U.S. House committee that investigated the Jan. 6 Capitol riot. Clark wanted the letter sent, but Justice Department superiors refused.

Click here to read the full article in AP News

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Trump Reportedly Getting Ready to Throw Giuliani and John Eastman Under the Bus

August 2, 2023 By Jamie Frevele 7 Comments

It’s possible that a third indictment is coming for former President Donald Trump for his involvement in January 6, and one legal strategy being hinted at is blaming the lawyers who advised him at the time.

Trump has claimed in his Truth Social posts that he “did nothing wrong” when the January 6 insurrection happened and he allegedly tried to steal the 2020 election, and that he was “advised by many lawyers” at the time. In a new Rolling Stone report by Asawin Suebsaeng and Adam Rawnsley those lawyers could very well turn out to be the scapegoats, specifically John Eastman and Rudy Giuliani:

The attorneys were acting on Trump’s behalf. But in this legal strategy, Team Trump would argue it was the lawyers leading Trump, rather than the other way around.

“It is an argument the [former] president likes, and the team is on board with it,” one Trump adviser bluntly says, then somewhat ominously adding: “John [Eastman] and Rudy [Giuliani] gave a lot of counsel … Other people can decide how sound it was.”

Judging by the testimony given by both Giuliani and Eastman, they knew that the advice they were giving was short of “sound.” In late July, Giuliani admitted in a court filing that statements he made publicly and repeatedly about Georgia election workers allegedly committing fraud were false. And when Eastman testified before the January 6 Committee in June 2022, he admitted that despite knowing that using former Vice President Mike Pence to overturn the 2020 election was illegal, he pushed for it anyway. Eastman even emailed Giuliani requesting that he “should be on the [presidential] pardon list, if that is still in the works.”

But placing blame on “advice of counsel” might not be enough because Trump listens to many other people besides his lawyers, including people who aren’t lawyers at all. Tim Parlatore, one of Trump’s former lawyers who quit this past May, told Rolling Stone how weak that defense could be:

“To my mind, ‘advice of counsel’ is a much more narrow defense, whereas a more comprehensive view of everything that went into Trump’s state of mind, and would affect the mens rea element of it, is more effective. This would include all of the advice and the information that he received and was basing his decision on — not just the advice from the attorneys who were formally representing him.”

But even with Trump placing the blame on others, that defense could backfire if he’s found to have committed a crime:

“[The ‘advice of counsel’ argument] has its limits. As a lawyer, I can’t tell my client: Look, there’s this obscure, ancient law that I found that says you can kill your wife. If the client goes out and kills his wife, it doesn’t really work if the client turns around and says, ‘Well, wait, my lawyer told me I could do that,’” says Steven Groves, who used to work as an attorney and then as a spokesman in the Trump White House.

Click here to read the full article

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He Devised a Fringe Legal Theory to Try to Keep Trump in Power. Now He’s on the Verge of Being Disbarred.

June 12, 2023 By Kyle Cheney 8 Comments

John Eastman, an architect of Donald Trump’s last-ditch bid to subvert the 2020 election on Jan. 6, is about to go on trial — but not in a criminal court.

Rather, the attorney is fighting to save his California bar license from authorities who say he repeatedly breached professional ethics — and possibly the law — in his bid to keep a defeated Trump in power. And those proceedings, while not as prominent as the Jan. 6 select committee or as potentially punitive as a criminal prosecution, are slated to elicit some of the most revealing and comprehensive testimony from figures who aided Trump’s effort to derail the transfer of power.

That’s because Eastman and the California State Bar have amassed witness lists that include figures who have rarely spoken publicly about Jan. 6 but may hold valuable evidence — including Eastman himself, who is listed as a potential witness by the state bar’s trial counsel and by his own defense team. Their lists also include other high-profile figures, like former Bush administration lawyer John Yoo and Michigan Secretary of State Jocelyn Benson, who are slated to testify as experts about constitutional law or election administration.

Eastman’s list features Kurt Olsen, a lawyer who spoke with Trump multiple times on Jan. 6 and who helmed legal efforts to unravel the election results in multiple states; Peter Navarro, the former Trump trade adviser who authored discredited reports on election integrity during the final weeks of 2020; Kurt Hilbert, a lawyer who worked on Trump’s post-election litigation in Georgia; Linda Kerns, a lawyer who worked on Trump’s post-election lawsuit in Pennsylvania; former Georgia State Sen. William Ligon; Doug Logan, the CEO of far-right election “audit” firm Cyber Ninjas; and Russell Ramsland, who was involved with a review of voting machines in Antrim County, Michigan, that became the source of pro-Trump conspiracy theories.

Trump talked to Olsen three times Jan. 6, 2021, including twice in the evening for a total of 21 minutes, according to White House logs obtained by the Jan. 6 select committee. But the content of those calls, as Congress was poised to reconvene after the riot had been largely pacified, remains unknown.

Meanwhile, the state bar plans to call its own notable list of witnesses, beginning with Greg Jacob, who on Jan. 6 was counsel to then-Vice President Mike Pence. Jacob tangled with Eastman in the days before Jan. 6 over Eastman’s claim that Pence could single-handedly prevent Congress from certifying Joe Biden as the winner of the 2020 presidential election.

That theory is at the heart of the state’s case to punish Eastman on 11 professional charges, which include failure to support the laws and Constitution, seeking to mislead a court, misrepresentations to other Trump aides and the public, and moral turpitude.

“It is no overstatement that democracy stood on the precipice. Had Vice President Pence followed [Eastman’s] baseless advice … the country would have plunged into a ‘profound constitutional crisis,’” writes Duncan Carling of the California State Bar’s office of trial counsel in a pretrial brief. “[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.”

The bar proceedings, including a pretrial conference Monday and two weeks of testimony later in the month, are an example of the myriad forms of accountability facing those in Trump’s orbit Jan. 6 — particularly lawyers, whose roles are often shrouded in the murky domain of legal advice and attorney-client privilege. Though national attention has been riveted to the potential prosecutions of Trump and his allies in Washington and Georgia, state bars have also been marshaled to pursue investigations of these matters and in some cases have produced much quicker results.

For example, amid pressure from bar authorities in Colorado, Trump attorney Jenna Ellis admitted in March that she had repeatedly misrepresented evidence about the integrity of the 2020 election. Rudy Giuliani’s law license was suspended in December after D.C. bar discipline proceedings resulted in a finding that he violated professional ethics and rules. And former Justice Department attorney Jeffrey Clark is awaiting similar proceedings in Washington, which were cleared to proceed last week after an eight-month delay.

Eastman spent the final weeks of the Trump administration stoking false claims of election fraud in order to put pressure on GOP-led state legislatures to appoint alternate slates of presidential electors. In Eastman’s view, those alternate slates would form the basis of a dispute that only Pence could resolve Jan. 6, when he presided over the joint session of Congress to count electoral votes and finalize the results of the election.

But no state legislatures agreed to appoint those alternate electors. Instead, in five states, groups of pro-Trump activists signed false documents claiming to be legitimate presidential electors — but without the backing of their state governments, which had certified the results in favor of Biden. Eastman would ultimately change tack, arguing that the false electors presented enough of a controversy for Pence to decide which ones to count — or at the very least refuse to count Biden’s votes and call for a delay in finalizing the election to permit those GOP-run states to revisit the outcome.

Jacob and Pence fiercely rejected that strategy, which they contended would require violating several provisions of longstanding election law with no credible evidence to support reversing the outcome.

But Eastman, undeterred, fought with Jacob even as rioters — infuriated by Pence’s refusal to acquiesce to Trump’s pressure — ransacked the Capitol. Jacob testified to the Jan. 6 select committee about his interactions with Eastman, even as the riot raged, and his email correspondence with Eastman from that day formed some of the most compelling evidence about Eastman’s efforts. Jacob has also testified to a federal grand jury in Washington.

Efforts by the Jan. 6 select committee to obtain Eastman’s emails from his former employer, Chapman University, also resulted in one of the most remarkable court rulings of the post-Jan. 6 era: A federal judge’s determination that Eastman and Trump likely conspired to obstruct congressional proceedings and defraud the public. That ruling, by California-based jurist David Carter, was part of long-running litigation that gave the select committee access to thousands of Eastman’s emails, including some after Carter applied the “crime-fraud” exception to attorney-client privilege.

In addition to Jacob, the California bar counsel plans to call election officials from five states, including Benson and Stephen Richer, the county recorder of Maricopa County, Ariz. The bar authorities also plan to call at least two constitutional experts to cast doubt on the legitimacy of Eastman’s interpretation of the law and Constitution.

Eastman has tapped Yoo to argue about his interpretation of the 12th Amendment. Carling indicated in a recent filing, however, that Yoo sat for a May 26 deposition and provided testimony that undercuts some of Eastman’s claims.

Click here to read the full article in Politico

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Why the Jan. 6 Committee Handed Out a Criminal Referral to a Former California Law Professor

December 20, 2022 By Freddy Brewster 4 Comments

Former Chapman University professor John Eastman is among the individuals whom the Jan. 6 committee has recommended face federal criminal charges for their roles in the attack on the Capitol on Jan. 6, 2021.

The committee recommended that Eastman and former President Trump should face federal criminal charges for obstruction of an official proceeding and conspiracy to defraud the United States. It recommended prosecuting “Trump and others” on two additional charges: conspiracy to make a false statement and inciting, assisting, or aiding or comforting an insurrection.

“[Trump] entered into agreements, formal and informal, with several individuals who assisted him with his criminal objects,” Rep. Jamie Raskin (D-Md.) said during Monday’s committee hearing.

In a statement after the referrals were announced, Eastman said the referral of charges from the committee to the Justice Department “carries no more legal weight than a ‘referral’ from any American citizen.”

“In fact, a ‘referral’ from the January 6th committee should carry a great deal less weight due to the absurdly partisan nature of the process that produced it,” Eastman said.

Who is John Eastman?

Eastman’s theory that former Vice President Mike Pence could reject or delay the certification of state electors was essential to Trump’s effort to convince his base that the election was being stolen. Eastman was central to “the development of a legal strategy to justify a coup,” according to Douglas Letter, the general counsel to the House of Representatives.

Eastman was also involved with a scheme to appoint alternate slates of Trump electors who could vote him back into office after he lost the 2020 election.

Eastman is already under investigation. Justice Department investigators searched his cellphone and emails earlier this year. In a March court filing, the Jan. 6 committee alleged Eastman and Trump were a part of a “criminal conspiracy” to overturn the 2020 election.

“[Eastman’s] role was not simply as an advisor; he spoke at the rally on the morning of January 6, spreading falsehoods to tens of thousands of people,” the committee wrote.

Eastman was interviewed by the committee in 2021, but invoked his 5th Amendment rights against self-incrimination. Along with Trump and Eastman, the Committee recommended charges against former Trump Chief of Staff Mark Meadows, former Justice Dept. official Jeffrey Clark and former Trump Lawyer Rudy Giuliani.

Eastman has deep ties to Southern California and the conservative movement.

What’s Eastman’s background?

Eastman, 62, was born in Lincoln, Neb., and holds a bachelor’s degree in politics and economics from the University of Dallas, a law degree from the University of Chicago Law School and a doctorate in government from the Claremont Graduate School in Claremont.

Before joining Chapman University’s law school in 1999, Eastman clerked for conservative Supreme Court Justice Clarence Thomas. (Thomas’ wife, Ginni, was also a focus of the Jan. 6 committee’s investigations.)

Eastman is currently a senior fellow at the Claremont Institute, a right-wing think tank, and founded the Center for Constitutional Jurisprudence.

During his speech at the Ellipse on Jan. 6, 2021, Eastman demanded that Pence “let the legislatures of the states look into this, so we get to the bottom of it, and the American people know whether we have control of the direction of our government or not.”

More than 140 Chapman University faculty members and three trustees signed a letter stating Eastman’s actions “should disqualify him from the privilege of teaching law to Chapman students and strip him of the honor of an endowed chair.”

Eastman called the letter “defamatory” and resigned before the faculty senate voted on a resolution against him. Both sides agreed not to sue each other, but Eastman’s connections to Chapman have affected the university’s reputation.

When did Eastman become acquainted with President Trump?

Eastman first officially entered the Trump orbit in the days after the Nov. 3, 2020, election when he was invited by people close to the then-president to help craft a legal memo challenging the election results in Pennsylvania.

In early December 2020, Trump asked him to bring legal action challenging the election directly to the Supreme Court. Eastman made two filings to the court, but the effort quickly failed.

What did Eastman do?

Eastman crafted a legal memo outlining the most politically palatable options for Trump to overturn the 2020 election. He suggested that Pence send the electoral college votes back to states for “recertification” by a new set of electors.

Depositions released by the committee show that Eastman was part of several meetings with Pence’s staff, including a Jan. 4, 2021, Oval Office meeting with Trump and Pence to discuss what authority Pence had.

Eastman “admitted in advance of the 2020 election that Mike Pence could not lawfully refuse to count official elector votes. But he nevertheless… deployed a combination of bogus election fraud claims and the fake electoral ballots to say that Mike Pence, presiding over the joint sessions, could reject legitimate electoral votes for President-elect Biden,” said Rep. Pete Aguilar (D-Redlands) during Monday’s hearing.

Emails released by the committee also show Eastman arguing with Pence’s staff during the riot about what the vice president should do when Congress returned to finish counting the votes.

The committee also highlighted Eastman’s effort to overturn the election even after the attack on the Capitol happened.

“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 that the American people can see for themselves what happened,” Eastman wrote in an email to Greg Jacob, Pence’s lawyer.

Once the riot at the Capitol ended, Eastman again emailed Jacob to say the vice president should refuse to certify the election and send it back to the states.

Under the Constitution, the vice president oversees the counting of the electoral college votes.

The House recently passed legislation declaring that the role of the vice president in electoral-vote counting is purely ceremonial. The measure is expected to pass the Senate in a spending bill later this month.

Did Eastman stop his efforts to overturn the election after Jan. 6, 2021?

No. Back in June, the committee released video showing a deposition by former White House attorney Eric Herschmann, who discussed a phone call from Eastman the day after the riot. Herschmann remembered Eastman asking him about preserving documentation dealing with the Georgia election that Eastman alleged could potentially be used in an appeal.

“And I said to him, ‘Are you out of your effing mind?’” Herschmann said in the video. “I said, ‘I only want to hear two words coming out of your mouth from now on: ‘orderly transition.’”

Herschmann demanded that Eastman repeat those two words back to him — Eastman eventually did.

“I said, ‘Good, John. Now I’m going to give you the best free legal advice you’re ever getting in your life: Get a great effing criminal defense lawyer. You’re going to need it,’” Herschmann said. “And then I hung up on him.”

Has Eastman’s opinion of the Jan. 6 events changed?

In a letter to the editor in the Wall Street Journal, Eastman denies that he claimed Pence “could unilaterally reject electoral votes and simply declare President Trump reelected.”

Click here to read the full article in the LA Times

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John Eastman’s Sorry Excuse for Jan. 6

November 24, 2022 By The Editorial Board 4 Comments

The Trump adviser claims he didn’t tell Pence to reject electors. Here are receipts.

In the lead-up to the Jan. 6 riot, John Eastman gave President Trump legal advice that was terrible, and now he’s trying to argue it was merely awful. In a letter to these pages on Nov. 14, Mr. Eastman, a former law professor of some distinction, denies he argued that Vice President Mike Pence “could unilaterally reject electoral votes and simply declare President Trump re-elected.”

Mr. Eastman claims he made only a modest proposal, Swiftian allusion intended: “The advice I gave to then-Vice President Pence was that he accede to requests from hundreds of state lawmakers to delay proceedings for a short time so that they could assess the effect of illegalities on the conduct of the election.” Mr. Eastman specifically refers to a conversation during an Oval Office meeting on Jan. 4, 2021.

But his position is contradicted by the sworn testimony of Mr. Pence’s legal counsel, Greg Jacob. According to Mr. Jacob, Mr. Eastman argued at the Jan. 4 meeting that it would, in fact, be “legally viable” for the VP to reject electors. Mr. Eastman advised against this plan only because it would be “less politically palatable.” That concession apparently didn’t last.

The debate was renewed the next morning, Jan. 5. “When Mr. Eastman came in,” Mr. Jacob testified, “he said, I’m here to request that you reject the electors. So on the 4th, that had been the path that he had said, I’m not recommending that you do that. But on the 5th, he came in and expressly requested that.” A piece of Mr. Jacob’s handwritten notes is in the public record. The top reads: “John Eastman meeting 1/5/21.” Then: “Requesting VP reject.”

There also are the two memos Mr. Eastman produced in advance of Jan. 6, which circulated among Mr. Trump’s advisers. “Here’s the scenario we propose,” the first one says. The VP “announces that because of the ongoing disputes,” seven states have “no electors that can be deemed validly appointed,” and “Pence then gavels President Trump as re-elected.” The second memo offers a menu of options. One is for Mr. Pence to outright reject electors.

A final thing to point out is that the argument in Mr. Eastman’s letter isn’t a defense. It’s more like a plea bargain to a lesser transgression against the American republic. Asking Mr. Pence to reverse the 2020 election directly was appalling. Asking the VP to stall the Electoral College, so that state legislatures could reverse the 2020 election, was also appalling.

Suppose Mr. Pence had tried to delay. The result would have been a constitutional crisis. Federal law sets the time for choosing presidential electors, and it’s Election Day in November. Mr. Trump wanted state lawmakers to overrule the will of the voters two months later, and two weeks before the scheduled transfer of power, despite no proof of widespread voter fraud. Doing this could have led to violence.

Also, the 12th Amendment says the Electoral College shall be tallied “in the presence of the Senate and House of Representatives.” Democrats controlled the House. Speaker Nancy Pelosi would not have permitted any joint session to reconvene and tally those phony electors. With no Electoral College count by noon on Jan. 20, who’s next in line to become President? The Speaker of the House. Or perhaps the Supreme Court would have intervened.

Getting this history right matters. “The Vice President has the power to reject fraudulently chosen electors,” Mr. Trump tweeted on Jan. 5, 2021, the day before the riot. He didn’t come up with that idea himself.

Click here to read the full article in the Wall Street Journal

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Eastman Takes the Fifth With Jan. 6 Committee

December 6, 2021 By Kyle Cheney Leave a Comment

The attorney, who helped former President Donald Trump contest the 2020 election, asserted his right against self-incrimination in a Dec. 1 letter to the Capitol riot panel.

John Eastman, the attorney who helped former President Donald Trump pressure then-Vice President Mike Pence to overturn the 2020 election, has asserted his Fifth Amendment right against self-incrimination, according to a letter he delivered to the Jan. 6 committee explaining his decision not to testify.

“Dr. Eastman hereby asserts his Fifth Amendment right not to be a witness against himself in response to your subpoena,” his attorney, Charles Burnham, wrote in a letter to Chair Bennie Thompson (D-Miss.) dated Dec. 1.

“Members of this very Committee have openly spoken of making criminal referrals to the Department of Justice and described the Committee’s work in terms of determining “guilt or innocence,” Burnham continues. “Dr. Eastman has a more than reasonable fear that any statements he makes pursuant to this subpoena will be used in an attempt to mount a criminal investigation against him.”

Eastman’s decision is an extraordinary assertion by someone who worked closely with Trump to attempt to overturn the 2020 election results. He met with Trump and pushed state legislative leaders to reject Biden’s victory in a handful of swing states and appoint alternate electors to the Electoral College, effectively denying Biden’s victory.

The former Chapman University law professor also pressured Pence, who is constitutionally required to preside over the Electoral College certification on Jan. 6, to unilterally refuse to count some of Biden’s electors and send the election to the full House for a vote — or delay long enough to give states a chance to submit new electors.

Eastman also spoke at Trump’s Jan. 6 rally alongside Rudy Giuliani.

Most of Burnham’s letter makes procedural objections to the structure of the Jan. 6 committee, focused on Speaker Nancy Pelosi’s decision to reject Minority Leader Kevin McCarthy’s appointees to the panel.

“The lack of a ranking minority member makes it impossible for this Committee to comply with clearly applicable House rules on subpoenas and depositions,” he writes.

Burnham also complains that the Capitol riot committee conducts its depositions in secret.

Click here to read the full article at Politico.com

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