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.
