Eastman Defends Jan. 6 Lead-Up Role in Bid to Keep Law License

Trump campaign lawyer John Eastman maintains he made good faith arguments that Vice President Mike Pence could delay counting electoral votes in the 2020 presidential election because of alleged widespread election fraud, actions the California Bar contends were unethical, violated the Constitution, and are deserving of his disbarment.

The constitutional law professor, in a post-trial brief filed Friday, said he was giving advice to President Donald Trump as a client, and was recommending to Pence that the count be suspended so state legislatures could investigate alleged illegalities or election irregularities, concerns that are “well-grounded in fact and anything but frivolous.”

Eastman accused the bar of making an “Orwellian” charge that the government “has spoken, and if you disagree, then you must be lying,” he said in that submission to California State Bar Court Judge Yvette Roland.

“And Dr. Eastman, in fulfilling his duties to a client, happens to have been thrust to the forefront of the push-back against such authoritarianism, at great expense both in time and treasure to himself. If Dr. Eastman and his client were correct that the 2020 election was stolen – a view they firmly held at the time and continue to hold – then the threat to our system of government is extraordinarily high,” the brief said.

The former Chapman University law school dean faces 11 counts of ethical and legal violations for his post-2020 election activities that culminated in the Jan. 6 Capitol attack. He and Trump, along with 17 other people, face related criminal charges in Georgia. The professor and the former president have each pleaded not guilty while three other attorneys have pled guilty to reduced charges in exchange for their testimony.

His 33-day trial in California over the fate of his law license, which started in June and ran intermittently until early November, included testimony from election fraud backers and debunkers, former Justice Department attorney John Yoo, and retired US Court of Appeals Judge Janice Rogers Brown, who defended his character and acumen.

Eastman also maintains he has a First Amendment right to speak out as a citizen and to seek redress from the government, claims that some attorneys contend are flawed and ultimately will be unsuccessful.

Since all of his statements for which the bar seeks discipline are out-of-court statements, including statements on the National Mall, in an article, and in an interview on Steve Bannon’s War Room, his brief said, “they firmly fall within the realm of speech protected by the First Amendment to the United States Constitution and can only be the basis for discipline if there was a substantial likelihood of prejudicing the administration of justice. The State Bar has not shown by clear and convincing evidence substantial likelihood that Dr. Eastman’s statements would materially prejudice any court proceeding. Indeed, it has offered no evidence on that point at all.”

‘Brazenly Remorseless’

Protecting the public from acts of moral turpitude mandates that Eastman lose his license, bar prosecutors contend.

By the time Eastman climbed the platform steps Jan. 6, 2021, to address a crowd on the Ellipse, more than 60 courts had dismissed cases alleging election fraud and there was no evidence to support such claims, the bar’s Office of Chief Trial Counsel said in the charges filed in January.

Eastman “ignored reliable evidence that the election was not tainted by fraud and court decisions rejecting claims of fraud” and he “sought to support his fraud claims using inexpert, unvetted, and unreliable sources who concede they uncovered no fraud,” the state’s brief said. He engaged in multiple acts of wrongdoing, contributing to the attack on the Capitol, eroding “without basis public trust in our government institutions and officials, and sought to disenfranchise millions of voters.”

Eastman “remains brazenly remorseless for his actions and has made clear that he would continue to engage in the same misconduct if allowed. The only appropriate outcome is disbarment.”

“Respondent’s misconduct strikes at the very heart of what it means to be a lawyer – he misused his license in a grave and injurious manner designed to undermine our democracy, subvert the peaceful transfer of presidential power, and thwart the will of the people in a free and fair election. In doing so, he betrayed the fundamental duties and oaths he swore to uphold,” the bar argues.

Roland, a one-time Duane Morris partner, has 90 days to decide whether Eastman should be disbarred or receive some other form of discipline, including suspending his license to practice law.

Losing his California license would affect his ability to represent parties in election-related litigation in Colorado and the Central District of California.

A federal judge in Southern California last year held that Eastman and Trump “more likely than not” committed criminal conduct and the Jan. 6 committee referred Eastman to the Department of Justice.

The former law dean could appeal Roland’s order to the State Bar Court Hearing Department, an appellate level review. The California Supreme Court, which decides lawyer admission and discipline, will make the ultimate decision about Eastman’s case. He’s said he has grounds for US Supreme Court review.

“The State Bar has not presented any evidence whatsoever, let alone clear and convincing evidence, that Dr. Eastman sought to mislead people via his statements, that he acted in bad faith, or he acted adversely to public morals. Accordingly, when Dr. Eastman’s statements were not intended to mislead, were not made in bad faith, and were not adverse to the state of public morals, they cannot form the basis of discipline based upon moral turpitude,” he said.

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

The case is In Re Eastman, Cal. State Bar, No. SBC-23-O-30029, closing briefs filed 12/1/23.