Eastman Disputes Earlier Testimony, Election Remarks to Pence

Conservative attorney John Eastman confronted testimony before Congress about his role and intentions in remarks to the Trump campaign, Vice President Mike Pence, and a Washington crowd about the 2020 presidential election and vice-presidential authority.

During cross examination Monday in the California State Bar Court by lead trial prosecutor Duncan Carling, Eastman disputed testimony by Pence’s chief counsel Gregory F. Jacob and White House lawyer Eric Herschmann regarding vice presidential authority to reject electoral votes. And comments to Pence about delaying the count weren’t advice given to a client, but a request, he said.

Among the bar’s charges is that Eastman failed to support the Constitution and US laws, specifically via a six-page memo on the election, his remarks Jan. 6 to a rally at the Ellipse that preceded the raid on the Capitol, and emails to Jacob regarding alleged evidence that the election was stolen.

Carling asked Eastman if his remarks to the crowd were discouraging the audience from trusting that Joe Biden won the election.

“I never said anything about trusting or not trusting the outcome of the election. I said we had seen evidence of illegality and fraud that warranted further investigation, because the election had been certified in the face of illegality,” Eastman said.

“So, you weren’t trying to cast doubt on the reliability of the 2020 election?” Carling asked.

“I wasn’t addressing doubt one way or the other. I was trying to get to the truth of whether the illegality affected the outcome of the election. I think I’ve said that about a dozen times now,” Eastman said.

Eastman is defending his law license against charges of engaging in moral turpitude and violating ethics rules and state law regulating lawyer conduct. The six-page memo to the Trump campaign dated Jan. 3 outlined potential situations where slates of electors could be rejected, including unproven allegations of election misconduct and fraud, according to the bar.

Jacob testified before the State Bar Court in June there was no legal or historical basis for Eastman’s theories that the vice president could force the issue of competing slates of electors in a presidential election back to the states when Congress convened to ratify the election results on Jan. 6, 2021.

Herschmann, in testimony to Congress, said Eastman argued the vice president could be the sole decision maker as to whether electoral votes could be counted. Eastman said he had conversations with Herschmann ahead of Trump’s lawsuit against Georgia over the election and briefly spoke with him before a Jan. 4 Oval Office meeting, but didn’t have the heated talk that Herschmann detailed to the Jan. 6 committee.

Not Advice

Eastman, a constitutional law professor, said the six-page memo “lays out nine different scenarios. It doesn’t advocate one way or the other for any of them.”

The one-time Chapman University law dean said his clients were Donald Trump and the Trump campaign, and that his comments to Pence during the Jan. 4 meeting weren’t advice to delay the electoral vote count.

“I was making a request of him. I consider advice to be something I give to a client. He was not my client,” Eastman said. He also said he was “perhaps speaking loosely” when he used the phrase in remarks to the public that he was giving Pence advice.

Eastman earlier Monday pushed back against arguments he lacked evidence to support claims to Pence that more than 100 lawmakers wanted to delay the presidential vote count.

“I don’t think any of these letters reflect a majority, if that’s what you’re after,” Eastman said on cross examination. “But I do think it was significant that state legislators were stepping up and saying: ‘Our elections should not be certified. Please give us time.’”

The trial before State Bar Court Judge Yvette Roland is in the final week. It follows three guilty pleas in the Georgia criminal case by other attorneys for Trump. Eastman, Trump, and 17 others were indicted on racketeering charges in that case.

The bar trial continues Nov. 2 and concludes Nov. 3 with closing arguments. The parties have until Nov. 22 to file post-trial briefs, at which time the case will be submitted. Roland has 90 days to decide, and her opinion can be appealed to the State Bar Court Hearing Department, the court’s appellate division. The California Supreme Court makes the ultimate decision over lawyer admission and discipline, including disbarment, suspension, or other forms of punishment.

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, trial 10/30/23.