Eastman Explains Why He Pressed Pence on Electoral Vote Counting

John Eastman, the Trump lawyer fighting to retain his license to practice law in California, testified Wednesday that he’d not have spent so much time trying to convince Vice President Mike Pence and his chief counsel that the vice president could reject presidential electors or delay the electoral vote counting if he knew Pence had already made up his mind.

Eastman, on the stand for a second straight day in his California State Bar Court trial, detailed discussions and a pair of meetings held in the days before Trump’s Jan. 6, 2021, Washington rally immediately prior his followers’ attack on the US Capitol.

Pence’s counsel Gregory F. Jacob testified at Eastman’s trial in June and before the congressional Jan. 6 committee there wasn’t 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.

Eastman told the court Wednesday that he didn’t know until Jacob testified that Pence already decided to do a “Dear Colleague” letter on Jan. 6 rejecting Eastman’s arguments the vice president had unilateral authority to decide which electoral votes could be counted and which shouldn’t be counted.

“If the decision had already been made and was irrevocable, there would have been no point in having the meetings at all,” Eastman told California State Bar Court Judge Yvette Roland.

The state bar seeks to disbar the conservative law professor. He’s charged with 11 counts of violating moral turpitude, ethics rules, and state law regulating lawyer conduct related to memos he wrote to Trump campaign officials and for remarks prior to the Jan. 6 Capitol assault.

Questioning Legitimacy

The bar has rested its case against the former Chapman University law dean. Defense witnesses have tried to lay out the basis for Eastman’s conclusions there were election irregularities that cost then-President Donald Trump the White House. Eastman has repeatedly said he believes there were unlawful actions taken by state actors absent legislative approval that call into question the legitimacy of the election.

There’s been no evidence of widespread voter fraud in Georgia or any other state during the 2020 election, despite multiple recounts, audits, and lawsuits sought by Trump and his allies after he lost.

Eastman, from the stand, continued to dispute Jacob’s characterizations of discussions held Jan. 4 with Jacob, Pence, Trump, Pence chief of staff Marc Short, and at times Trump’s chief of staff Mark Meadows, and a day later with Jacob and Short.

On direct questioning from his attorney Randall Miller, Eastman said he became aware at some point that Pence—perhaps with Jacob’s counsel—decided not to act on the recommendations. “I didn’t know that at the time. I wouldn’t have spent as much time in the meeting on the fifth if I had known if I’d known it was already decided,” he said.

Jacob told the congressional Jan. 6 committee that he’d told Eastman during those meetings that the law professor’s theories lacked a sound legal basis, and that Eastman acknowledged Pence couldn’t reject the electors.

Electoral Count Act

Some scholars, including Eastman and John Yoo, a onetime US Justice Department lawyer who gained notoriety for memoranda he authored widely seen as justifying the use of torture when interrogating terrorism suspects, argue the vice president as president of the Senate has an active role in counting electoral votes in a presidential election.

No court has decided the constitutionality of the Electoral Count Act, which Eastman contends is unconstitutional because it takes away from the vice president the dispute mechanism and gives to Congress authority to resolve disputes.

While testimony over the act, the presidential elections in 1796 and 1800, and the 12th Amendment can seem esoteric, the issues of how to interpret who has authority over the counting of the slates of electors that states send to Congress is central to Eastman’s arguments he was asked to offer recommendations as a conservative constitutional scholar.

Roland has 90 days at the close of oral arguments to issue a recommendation. Roland’s opinion can be appealed to the State Bar Court Hearing Department, which acts as an appellate level. The California Supreme Court will make the final call on Eastman’s discipline, including disbarment.

Testimony continues at least through Oct. 20, with additional trial dates likely. Hearings began in June. Roland on Wednesday said she was giving each side 75 minutes to make closing arguments and will allow up to 75 pages for post-trial briefings.

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, hearing 10/18/23.