Torture Memo Author John Yoo Testifies in John Eastman’s Defense

John Yoo, the onetime US Justice Department lawyer who gained notoriety for memoranda he authored widely seen as justifying the use of torture when interrogating terrorism suspects, took the stand Tuesday in defense of embattled conservative law professor John Eastman.

Eastman, an advisor to ex-President Donald Trump and former Chapman University law school dean is relying on the former George W. Bush administration official to support Eastman’s contentions that his work to buttress Trump’s claim to a second term wasn’t without legal basis.

Yoo, a University of California at Berkeley law professor, testified before the California State Bar Court that the 1796 and 1800 presidential elections and the US Constitution’s 12th Amendment offer support for the proposition that then-Vice President Mike Pence’s had a greater than ceremonial role in the electoral vote count of Jan. 6, 2021.

After the 12th Amendment’s addition in 1804, the election of 1876 was a “major historical event, Congress claims it’s their power to resolve disputes.” Yoo said, citing to the disputed contest between Republican Rutherford Hayes and Democrat Samuel Tilden, ultimately resolved in Hayes’ favor by Congress.

Eastman wrote memos advancing theories that Pence as president of the Senate could reject electoral college votes, declare Trump the victor, or delay Congress certifying the 2020 results.

Electoral Vote Counting

The state bar has charged Eastman with violating 11 ethical and statutory obligations in his role post-election that culminated in the Jan. 6 raid on the US Capitol.

Some conservative legal scholars including Eastman argue the Electoral Count Act passed in 1887 is unconstitutional because Congress can’t dictate how any branch of government is to perform its unique duties.

The “better reading of the constitutional text” in the 12th Amendment is that the vice president would pick between competing slates if they came from different points, such as governors sending on slate of electors for a specific candidate versus state assemblies authorizing a separate slate, Yoo said.

Yoo’s testimony is intended to counter that of Matthew Seligman, the Stanford Law scholar who said there was no legal or historical basis for Eastman’s arguments that the vice president has the authority to reject electoral votes.

The former Chapman University law professor also seeks to blunt the testimony of attorney Gregory F. Jacob, then Pence’s chief counsel, who told the California State Bar Court that history provided not a single example of any vice president ever exercising such authority or asserting that they could ask state legislatures to resolve which of competing slates of electors to count.

Testimony Limited

The court on Tuesday sustained a slew of bar prosecutors’ objections over the breadth of Yoo’s testimony, rejecting arguments proffered in support of it by Eastman’s lawyer, Randall Miller.

“This disciplinary proceeding is not based on addressing Dr. Eastman’s general views about constitutional law. It’s based on very specific alleged conduct by Dr. Eastman,” State Bar Court Judge Yvette Roland told Miller.

“What is key here is what Dr. Eastman did or didn’t do, and what he stated” in supporting his arguments about the scenario in which the vice president could assert the role of counting or rejecting electors, Roland said.

Yoo was permitted to testify on the state bar’s first count, alleging Eastman had failed to support the US Constitution and laws.

The court also allowed Yoo to testify on the count alleging Eastman “repeatedly proposed and sought to encourage that Pence exercise unilateral authority to disregard the electoral votes of certain states or delay the counting of electoral votes.”

He also will testify on the charges alleging moral turpitude for Eastman allegedly misrepresenting seven states that had voted for Joe Biden transmitted dual slates of electors to the president of the Senate, and a separate memo stating without evidence “upon which a reasonable attorney would rely” of fraud through electronic manipulation of voting tabulation machines.

Eastman is scheduled to return to the stand on Wednesday.

Yoo, who clerked for Supreme Court Justice Clarence Thomas and was general counsel to the Senate Judiciary Committee, will return to the stand Sept. 15 for cross examination.

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, hearing 9/12/23.