Alternate Elector Theory Allowed in John Eastman Ethics Case

Donald Trump counsel John Eastman lost his bid to exclude claims he conspired to create alternate electors to those that certified the 2020 presidential election from his California ethics and statutory violations trial.

State Bar Court Judge Yvette D. Roland on Wednesday denied Eastman’s motion to prevent state bar prosecutors from introducing witnesses, exhibits, or other evidence relating to the claims against the one-time law professor.

The trial will resume Thursday.

Eastman is defending his law license. He’s charged with violating 11 ethical and statutory obligations in his post-election role that culminated in the Jan. 6 raid on the US Capitol. The one-time Chapman University law dean wrote memos advancing theories that then-Vice President Mike Pence could declare Trump the victor or delay Congress’ certification of the 2020 results. He denies any violations.

Eastman’s “alleged role in creating the dual slates of electors would be evidence in furtherance of a strategy to overturn the results of the election as alleged” in the first count in the notice of discipline, Roland said. Further, two more counts allege he “made misrepresentations when he stated that seven states had transmitted dual slates of electors.”

Such evidence “would be relevant to whether Respondent knew the statements were false and/or misleading,” the judge said.

The charges aren’t new, and Eastman was on notice of the bar’s allegations, Roland said. In his answer to the charges, Eastman denied that his statement regarding the existence of dual slates of electors from seven states was false and misleading. This “further demonstrates” that he was on notice that the dual slates of electors was at issue.

Attorney-Client Privilege

Eastman also presented no evidence, and therefore failed to meet his burden, to show that the evidence was protected by attorney-client privilege, Roland said.

The attorney-client privilege protects confidential communications between the attorney and his or her client during their professional relationship, the court noted. To support a privilege claim, a communication must be made by a client to a lawyer in confidence and during the course of the attorney-client relationship. Eastman contends even identifying non-clients with whom he may have had conversations triggers the privilege under California Business and Professions Code Section 6068(e)(1), which requires lawyers to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

The Trump campaign has waived privilege, but the former president has not.

Roland hasn’t yet ruled on Eastman’s request to abate or stay the bar court proceedings pending resolution of an ongoing federal criminal investigation into the former president.

Eastman was indicted Aug. 14 in Georgia on racketeering charges relating to the plan to declare Trump the winner in the presidential election. The conservative lawyer surrendered to Fulton County authorities on Tuesday after Roland continued the trial to Thursday. Eastman is also widely believed to be the unnamed co-conspirator 2 in Special Counsel Jack Smith’s Aug. 1 indictment of Trump.

The Office of Chief Trial Counsel represents the bar. Miller Law Associates represents Eastman.

The case is In Re Eastman, Cal. State Bar, No. SBC-23-O-30029, motion denied 8/23/23.