One of the more dispiriting aspects of Donald Trump’s disturbing ability to inspire the unthinking allegiance of his followers is the fact that so many of them, by any objective standard, really ought to know better. Nowhere has this been more evident than in the behavior of the lawyers he enlisted to provide legal cover or justification for his efforts to overturn the 2020 election.
The case of John Eastman is particularly troubling. As the so-called legal architect of Trump’s plans to keep himself in office despite clearly losing a free and fair election, once Eastman started dispensing his advice, he had a responsibility as a lawyer to provide Trump with all available legal options under the circumstances. That responsibility, however, did not confer on him the right—under the widely understood rules of lawyers’ professional conduct—to advise Trump or others within Trump’s orbit to avail themselves of pseudo-legal justifications that patently flew in the face of existing law. As the former dean of the Chapman School of Law, and a former law clerk to Supreme Court Justice Clarence Thomas, Eastman should have known that. Put as charitably as possible, the fact that Eastman apparently didn’t know suggests that he allowed his right-wing political inclinations to govern his judgment. Put less charitably, it suggests he completely misunderstands his obligations as a lawyer. That’s why Eastman is facing disciplinary proceedings in the state of California right now, and why those proceedings may well result in his disbarment.
Last week the attorney for the California State Bar, prosecuting those proceedings, submitted a 91-page report authored by its expert, Matthew A Seligman. Seligman, a fellow at the Constitutional Law Center at Stanford University and a specialist in election law, evaluated Eastman’s actions, including his supposed legal theories, and concluded they could not have been made by any lawyer in good faith.
The Washington Post’s Jennifer Rubin highlights some of the key aspects of the report. As Rubin observes, the report has serious implications that go well beyond John Eastman’s ability to continue practicing law: It also contains bad news for Donald Trump and others indicted in connection with his schemes to overturn the 2020 election.
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The California State Bar charged Eastman in January, alleging that he “engaged in a course of conduct to plan, promote, and assist then-President Trump in executing a strategy, unsupported by facts or law, to overturn the legitimate results of the 2020 presidential election by obstructing the count of electoral votes of certain states.” Eastman faces 11 charges, including eight involving “moral turpitude,” relating to his advice to Trump and others, among them making “false and misleading statements regarding election fraud.” These include statements he made on Jan. 6 at the Ellipse on the Washington Mall, immediately preceding the violent assault by a Trump-supporting mob on the U.S. Capitol building itself.
As Rubin notes, Eastman’s alleged actions relating to his support of Trump’s efforts have led to his indictment by the district attorney in the criminal case pending in Fulton County, Georgia, Superior Court. He is also listed as an unindicted co-conspirator in the federal indictment filed by special counsel Jack Smith in Washington, D.C.
As reported in June by The Washington Post’s Jacqueline Alemany and Amy B. Wang, as his disciplinary proceedings have unfolded, Eastman has argued via his counsel that he was merely seeking to ensure that the 2020 election “was properly and legally conducted and certified and votes were properly counted.” However, the attorney for the state bar has argued a much different motivation was at work: Eastman simply sought to overturn the election by floating legal theories he knew—or should have known—were bogus, in accordance with what Trump wanted.
“Dr. Eastman sought at every turn to avoid every public test of his theory, and he privately confessed … that his theory had no chance of persuading the court,” Carling said in his opening statement.
Carling also said Eastman was “fully aware” that his plan was damaging the nation — including putting Vice President Mike Pence and members of Congress in danger during the insurrection — and that his actions “breached the most important ethical duties of attorneys: of honesty and adherence to the rule of law.”
As Rubin explains, the expert report of Seligman in support of the bar’s charges delivers a potentially devastating blow to Eastman’s future prospects as a lawyer:
In his report, Seligman addressed whether “the legal positions advanced by Dr. John Eastman in relation to the counting of electoral votes for the 2020 presidential election” were reasonable. Specifically, he assessed whether — as Eastman, Chesebro and others posited — Mike Pence, as vice president, had “unilateral authority to resolve disputes about electoral votes or to take other unilateral actions with respect to the electoral count” or could “delay the electoral count for a state legislature to take action with respect to a state’s electoral votes and whether a state legislature may lawfully appoint electors after the electoral count commences.”
Seligman reviewed the 12th Amendment, the Electoral Count Act of 1887 and “centuries-long practice by Congress” to find that the Eastman positions were so devoid of support that “no reasonable attorney exercising appropriate diligence in the circumstances would adopt them.” In essence, Seligman strips away the pretense that Eastman (and, by extension, Chesebro) engaged in routine legal work.
Rubin quotes passages from Seligman’s report that address Eastman’s specific arguments made to justify Trump’s actions, demonstrating why no reasonable lawyer would adopt them:
“The historical record conclusively demonstrates that the President of the Senate holds no unilateral power to take any substantive action with respect to the electoral count,” Seligman wrote. “In particular, the President of the Senate holds no unilateral power to reject electoral votes, to resolve disputes about the counting of electoral votes, or to delay the counting of electoral votes.” He concludes, “Dr. Eastman’s decision to advance those unfounded legal positions as part of an attempt to reverse the lawful result of a presidential election violates fundamental precepts of American democracy.”
As Rubin notes, Seligman—contradicting Eastman’s position—also confirmed that no vice president has ever rejected a slate of electors, nor would the law allow him (or her) to do so.
The disciplinary procedure allows Eastman to call his own witnesses and submit his own reports as well. However, the witnesses listed by Eastman simply reveal just how deeply enmeshed Eastman himself is in the right-wing subculture. As reported by the States United Democracy Center, they included Jacki (Pick) Deason, a right-wing attorney and podcast radio commentator on the Glenn Beck-founded Blaze Network; Bryan Geels, an accountant and owner of a data analytics firm who had previously been identified as an “expert” in Donald Trump’s failed lawsuit to overturn the election in Georgia; and Joseph Oltmann, another right-wing podcaster who “gained notoriety by claiming he had personal knowledge that the 2020 election was stolen based on his alleged infiltration of an online Antifa meeting where a Dominion Voting Systems officer purportedly suggested that the company would rig the election.”
What all of these singular individuals have in common is that they lack the capacity to actually defend Eastman’s actions as a lawyer. They are instead listed for purposes of bolstering his defense that he (presumably) had a good-faith belief that the 2020 election was fraudulent. However, that “belief” is not really the issue that faces the state bar in its disciplinary proceedings, but whether Eastman acted on that belief in an unethical manner—i.e., in conflict with existing law—in providing legal “cover” to Trump and his cohorts. A lawyer is free to “believe” whatever he wants; it’s when he translates those beliefs into actual actions and advice that he opens himself up to ethical scrutiny because of the potential harm he may be inflicting on others, directly or indirectly, through his purported expertise.
Not only Eastman but Trump and his other co-indictees in Georgia, for example, have relied on similar arguments as Eastman has advanced to justify their actions. The impact and persuasiveness of Seligman’s report on Eastman’s own defenses in that case should be immediate and obvious. As Rubin notes, however, the findings contained in that report may—and likely will—also impact how legal arguments by the other defendants are viewed by the judges presiding over Trump’s multiple cases. For example, Trump’s defense that he was simply acting on the advice of counsel does not apply when that advice is made—as Seligman’s report suggests—in bad faith. Similarly, as Rubin observes, Trump’s justification that he was acting in an official capacity is undercut by a finding that his actions were not even legally plausible.Â
As Rubin points out, Seligman’s report and its conclusions may also impact Trump’s arguments that he is immune to state prosecutions under the Supremacy Clause. It will also negate the efforts by Trump and others indicted (including most recently Mark Meadows) to remove their cases to federal court on the basis that they were acting under the “color of office.”
In short, the outcome of these disciplinary proceedings against Eastman will implicate more than his own status as a lawyer. They also will impact the people who adopted his legal (or illegal) positions and acted on them accordingly. Perhaps most importantly, however, they will hopefully speak to the consequences and implications of actively subverting the law, all for the sake of satisfying someone’s political agenda.
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