Trump Lawyer Eastman Disputes Pence Aide’s Vote Count Testimony

Conservative law professor John Eastman on Wednesday disputed testimony from White House aides and counsel that he and then-President Donald Trump were warned they were on shaky legal ground when they suggested the vice president could reject electors votes in the 2020 presidential election.

Eastman’s testimony came in a California State Bar Court trial after which the attorney could face professional discipline, including the loss of his license to practice law in the state because of his actions in contesting the 2020 US presidential election, including the pressuring of Vice President Mike Pence to reject some states’ Electoral College votes.

Gregory F. Jacob, who was counsel for Pence, 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.

Bar prosecutor Duncan Carling on Wednesday asked Eastman if he recalled Jacob’s testimony that the professor’s legal positions “were contrary to historical practice,” that Jacob had told him so prior to Jan. 6, and that Eastman conceded the point.

“I recall him testifying that. I dispute that that’s an accurate characterization of our discussion,” Eastman said. “I’m denying that I agreed there was no historical precedent.”

Eastman also contested Jacob’s testimony that the law professor conceded his arguments the vice president could reject electors would fail 9-0 in the US Supreme Court. “I dispute his characterization of that part of the discussion,” Eastman said. “What we were talking about at that moment was, to the best of my recollection, whether the court would weigh in should the president delay the proceedings to let the legislature continue with the investigation as I requested.”

Eastman said he ultimately did agree that if the vice president rejected the electors and gaveled Trump reelected, the court could rule on the politically charged issue, rather than declare the subject a nonjusticiable political question that should be left for resolution by the elected branches of the government.

“It was that point and only on that point that I agreed that they would find a way around it and probably rule 9-0 against it,” he said.

Fifth Amendment Shield Denied

Eastman is defending his California law license without benefit of Fifth Amendment protections against self-incrimination. State Bar Court Judge Yvette D. Roland rejected defense arguments that requiring the former Chapman University law professor to testify violated his rights. The judge also refused to stay the case despite Eastman’s indictment in Georgia, together with Trump and 17 other defendants, for racketeering.

Eastman authored two memos to Trump campaign officials outlining potential scenarios where slates of electors could be rejected, including unproven allegations of election misconduct and fraud. He met Jan. 4, 2021, with Trump, Pence, Jacob, and Marc Short, Pence’s former chief of staff, in the Oval Office where they discussed the vice president’s role on Jan. 6.

“Is it your testimony that you were consistently in that Jan. 4 meeting recommending the delay of instead of the reject option?” Carling asked. “That’s my testimony,” Eastman said.

The former law dean also challenged testimony by Jacob and Short to the congressional committee charged with investigating the run-up to the Jan. 6 mob attack on the US Capitol that at a Jan. 5 meeting he’d recommended Pence reject the electoral votes. “I have no recollection whatsoever of making that statement, and quite frankly, given where we ended up on the fourth, I find it implausible I would have made it.”

Mistaken Identity

Eastman also denied having had a discussion with former White House lawyer Eric Herschmann in which the professor expressed the view that Pence could be the sole decision maker as to whether those votes could be counted.

“I’ve seen that part of Mr. Herschmann’s deposition, and he expresses with certainty that such a conversation occurred in person before Jan. 2. I was not even in the Washington, D.C., area until the evening of Jan. 3. I think he most likely was confusing me with someone else,” Eastman said.

The California State Bar Court hearing resumed Tuesday on the bar’s 11 countsof ethical and legal violations for Eastman’s role post-election that culminated in the Jan. 6 Capitol attack.

Testimony continues Thursday with testimony from accountant Joseph Fried, who conducted an “audit” about 2020 election “anomalies,” and former Wisconsin Supreme Court Justice Michael Gableman.

Additional trial days are scheduled Sept. 12-15.

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 9/6/23.