One Year Ago Today (June 20, 2023)…Former Chapman University law school dean John Eastman used baseless legal theories” in an attempt to prevent the certification of President Joe Biden’s election, a state bar attorney told a hearing officer considering Eastman’s proposed disbarment, while Eastman’s lawyer said his client was arguing disputed legal scholarship and was protected by free-speech rights.
“I will ask the court to consider his entire course of conduct and see it for what it was … to obstruct the electoral count on Jan. 6 and stop (then-Vice President) Mike Pence from certifying the election of President Biden and prevent him from taking office,” state bar prosecutor Duncan Campbell Carling said.
“The evidence will show that Dr. Eastman’s legal theory that Pence could reject the votes in certain states or delay the electoral count independently was baseless,” Carling said.
“Dr. Eastman did worse than advance frivolous legal theories,” Carling said. The prosecutor accused Eastman of a “last-ditch effort” combined with a “long course of increasingly desperate attempts to overturn the election” that included making “false claims about election fraud to legislatures, to courts, to the general public.”
Eastman also pressed state legislatures to authorize an alternate slate of electors favored by former President Donald Trump, Carling said.
Eastman “continued to do these things” even though investigators rejected the claims of widespread voter fraud and “after they had a full and fair opportunity to present these claims in state and federal courts, which they either lost or withdrew,” Carling said.
“And even then after it was clear that bipartisan majorities in both houses of Congress would refuse to” accept the alternate slates of electors, Carling said.
Carling also pointed to an email exchange between Eastman and Pence’s attorney, Greg Jacob, in which Eastman “privately confessed to Jacob that his theory had no chance of persuading a court. He was fully aware in real time that his plan was damaging the nation even after violence erupted in the Capitol, putting Vice President Pence and his family and members of Congress in danger. Dr. Eastman continued to press his illegal scheme and suggested that Vice President Pence was responsible for his predicament,” he said.
Jacob told Eastman that he was being “gravely irresponsible” to “entice the president with an academic theory that had no legal viability and you would well know we would lose in front of any judge who heard the case,” Carling said, quoting the email exchange.
Jacob said Eastman would have opposed Democrats if the shoe was on the other foot, according to Carling.
Eastman’s attorney, Randall Miller, said he was unable “to find anything quite like this case and the issues the court is prepared to deal with.”
Miller argued the case was about whether Eastman’s legal theories were “tenable,” whether he was protected by free speech rights federally and in California and whether he had the right to petition for redress.
Eastman was “not there to steal the election or invent ways to make President Trump the winner,” Miller said. “In fact, if he lost, his hope was that the election was properly and legally conducted.”
Eastman’s goal was to “delay” the certification of the votes so the states where the votes were most closely contested could continue to investigate the claims of fraud, Miller said. Miller pointed to Pence’s remarks citing concerns about “voting irregularity.”
Miller said Jacob also acknowledged in early December that there was debate about Pence’s authority to halt or delay the certification of the vote.
“It is very telling because Mr. Jacob in that memo goes on to say five times … that it is not clear what constitutional authority the vice president has and it has been subjected to scholarly debate for years and scholars disagree with that power,” Miller said. “Some argue that the sole responsibility of the vice president is to count the electoral votes. That’s the legal issue that is at play here.”
Miller said that “all roads lead through Vice President Pence.”
The conversation Eastman and Jacob had were “two smart people talking about the scope of constitutionality … a conversation in good faith that lawyers do,” Miller said.
Eastman testified Tuesday that in one of the lawsuits challenging the results in Georgia he relied on an expert, Bryan Geels, who merged two sets of numbers on a spreadsheet that incorrectly displayed 66,247 underage Georgia residents were illegally allowed to register to vote in the 2020 election. That was later revised down to about 2,000 by Eastman’s expert.
Georgia Secretary of State Brad Raffensperger, who said no underage teens were allowed to vote, also challenged Eastman’s other statistics, including that 2,500 felons were allowed to vote when it was actually 74, Carling established under questioning.
Eastman accused Raffensperger of mischaracterizing what he said.
“`Mr. Geels’ report never said underage teenagers voted,” Eastman testified, adding that Geels said some teens, who are allowed to register if they are 17 and a half, were allowed to register when they were 16.
“I referred to the expert, and all of those were based on caveats that we weren’t able to complete our analysis,” Eastman said.
Eastman said he was “on the receiving end of a lot of information” at the time, and added that he was also ailing from a COVID-19 infection in the latter half of December 2020.
“I was a little bit under the weather with a 104 temperature,” Eastman said.
Eastman defended his argument that voter fraud could allow for the seating of new electors.
“It is uncharted territory,” Eastman said, pointing to a case in Pennsylvania in which election fraud led to the removal of a state lawmaker after he was sworn in.
“I was not encouraging or discouraging” the discussion on seeking alternate slates of electors favorable to Trump, Eastman said.
“I was rendering a requested legal opinion,” he said.
When asked if he was aware that Raffensperger and Georgia Gov. Brian Kemp, who certified the results of Biden’s victory in his state, are Republicans, Eastman said, “I believe so.”
Carling questioned Eastman about how seriously he took the declarations from experts from the other side in the lawsuits challenging the election results. He asked him if it gave him any doubt regarding Geels.
“No, because this was an opposition expert. I see this in every case I’m involved with,” Eastman said. “And I found that Mr. Geels had already addressed (the criticism) in his opening declaration in a way that I thought was credible.”
Eastman cited attorney-client privilege a number of times during questioning when asked if he had any discussions with anyone about seating alternate electors. Eastman said that the Trump campaign had waived privilege, but the former president did not.
The hearing’s judicial officer, Yvette D. Roland, stepped in a few times during questioning to say Eastman was not citing privilege correctly. And when Eastman quarreled with Carling about some of his questions, she admonished him.
“You don’t get to frame and reframe a question to the question you want,” Roland told Eastman.
Carling also questioned Eastman’s choice of one exhibit in his defense from a reporter whose piece was critical of the plan to seat alternate electors. Eastman said that he believes that “portions of the article support his contention” of an effort among Democrats to “eliminate signature verification” with mail-in and absentee ballots, which favored Biden’s campaign.
Eastman will continue testifying Wednesday.