A California State Bar hearing officer Wednesday recommended disbarment for one-time Chapman University law school dean John Eastman for his role as former President Donald Trump’s attorney in attempts to delay or block the certification of the election of President Joe Biden.
The hearing officer, Yvette D. Roland, also recommended Eastman, who was admitted to the State Bar in 1997, pay $10,000.
Eastman began making national headlines when he addressed the crowd of Trump supporters in Washington, D.C., before the Jan. 6, 2021, attack on the U.S. Capitol aimed at halting the certification of President Joseph Biden’s election. It set off a firestorm at Chapman University, where some faculty and students pushed for the ouster of Eastman, who had been its law school dean from 2007-10. Eastman agreed to retire in January 2021.
A year later, Eastman sued the congressional Jan. 6 committee seeking to block lawmakers from accessing his Chapman emails. That litigation ultimately led U.S. District Judge David O. Carter to turn over some emails that would normally be kept private by law because Carter concluded there was evidence a crime was committed in efforts to overturn the election results.
Eastman then faced discipline from the State Bar, which sought to disbar the constitutional scholar. Eastman and his attorneys sparred with the Bar’s lawyers for 35 days of trial that included 23 witnesses.
During the trial, Eastman was indicted in Georgia with multiple other defendants, including the ex-president, on election fraud charges.
Eastman was accused by the State Bar of conspiring with Trump “to develop and implement a strategy to obstruct the counting of electoral votes on January 6, 2021, and to illegally disrupt the peaceful transfer of power to President-elect Joseph Biden, knowing that there was no plausible evidence, and no good faith theory or argument, to lawfully undo or delay the January 6 electoral count,” State Bar attorney Duncan Carling argued in his closing brief.
Carling noted that by mid-December 2020, courts in the seven key states where challenges were made were “uniformly rejected.” The Trump administration’s Justice and Homeland Security Departments had also rebuked Trump’s claims of widespread fraud, Carling added.
The governors in the seven states, including some who were Republicans with legislative majorities, had certified Biden’s election. The Electoral College had also certified the results.
“By the time (Eastman) wrote his Dec. 23 and Jan. 3 memoranda, therefore, he knew that there could be no true dispute about who had won the election,” Carling said.
Still, Eastman pressed then-Vice President Mike Pence to reject the slates of electors in the seven states or send them back to the state legislatures for continued investigation of the debunked fraud claims, Carling said. That move would violate the Electoral Count Act, which has been in place for more than a century, Carling said.
He added, “it would effectively make Pence the sole and final super-judge of the lawfulness of state elections — and, indeed, of his own election — contrary to the Framers’ intent, established principles of federalism and separation of powers, and any notion of checks and balances.”
Carling also criticized Eastman’s speech at the Ellipse before mobs of Trump supporters marched over to the Capitol, with many rioting and breaking into the buildings to disrupt Congress from certifying Biden’s victory. Eastman continued making the case to Pence’s attorney even as the violence was unfolding, Carling added.
Eastman relied on and “purposely parroted the misguided opinions and narratives of demonstrably unqualified, unvetted, and unreliable `experts,”’ Carling said.
Carling pointed out that even Eastman’s own expert, John Yoo, acknowledged that Biden won “fair and square” in his testimony. Carling added that Yoo himself capitulated when then-U.S. Attorney General Bill Barr declared there was no evidence of widespread fraud in the election.
Eastman’s “misconduct, accompanied by his blatant indifference, which persists to date, is so outrageous and exceptional, there is no case law directly on point,” Carling said, adding it is worse even than the conduct of Donald Segretti, known for his dirty tricks in the Watergate scandal.
Segretti at least was only 30 at the time and was not acting as an attorney and ultimately recognized how wrong he was and “expressed regret, and cooperated with the investigating agencies,” Carling said.
Eastman’s “misconduct is much more egregious and has a direct correlation to the Jan. 6 riot, which caused serious physical harm,” Carling said.
Eastman’s attorney, Randall Miller, however, argued that the “renowned constitutional scholar, professor, and former dean” did nothing wrong and was “zealously” advocating for his client as he pursued a legal theory.
Eastman “based on thorough research and his extensive knowledge (gained during decades of scholarly study) of core separation of powers principles codified in the Constitution, Dr. Eastman determined that another viable remedy was for the President of the Senate (the vice president of the United States) to accede to requests from state legislators for a brief delay in the electoral college proceedings, in order to allow for additional time for state legislatures to exercise their constitutional power of determining whether illegality in the election had affected the outcome,” Miller wrote in his closing brief.
Miller contended that it was still an “open question” how much authority the vice president has in the counting of electoral votes.
“Crafting such legal arguments, grounded in a good-faith interpretation of the historical record and not foreclosed by precedent, is precisely what is demanded of attorneys in our adversarial system,” Miller said.
Miller further argued that Eastman was “fully protected by the First Amendment” in his statements about election fraud.
Former Vice President Mike Pence’s attorney, Greg Jacob, testified during the disbarment hearing that all his former boss was tasked with doing was opening the envelopes from the electors and recording the results. Jacob said Pence lacked any authority to delay the proceedings or reject any of the electors who sided with Biden.
Jacob said there is nothing in the U.S. Constitution that spells out anything about the role of the vice president — as president of the U.S. Senate — in certifying the electoral college results other than opening them. It is a “ministerial” role, he said.
After the hotly disputed election of 1876 in which Rutherford B. Hayes defeated Samuel J. Tilden, provisions were put in place to stymie any delaying of certifying electoral college votes, Jacob explained. The Electoral Count Act was adopted in 1887 to put in place more rules on tallying electoral votes.
Jacob said it was never entirely clear what states Trump and Eastman wanted to challenge, but there were discussions about Arizona, Georgia, Wisconsin, Michigan, Pennsylvania, Nevada and New Mexico.
Jacob emphasized that in the entire history of the country, no vice president had ever asserted himself into the electoral vote certification. In fact, Jacob said, when a dispute arose in Hawaii in the 1960 election that then-Vice President Richard Nixon, who lost to President John Kennedy, opened three envelopes of slates of electors and to save time said he believed the one favoring Kennedy was the correct one and Congress did not oppose it.
Jacob also researched the election of 1800, which prompted another constitutional crisis. He said he found it more helpful to check the congressional record than to review law journal articles because the authors of those often come up with “sexy” angles that at times aren’t correct.
Jacob said they also discussed what the “framers” of the constitution would want.
“Would the framers want a rule that the vice president unilaterally has a chance to decide this issue,” Jacob said. “Did we actually think any of the framers would say yes? … No one would want that to be the rule.”