Disbar attorney at center of scheme
The House January 6 select committee’s hearings on Capitol Hill may feel remote from California — almost 3,000 miles, in fact. But as the hearings progress and we learn more, it’s evident that conservative legal icon Judge Michael Luttig was right when he told the committee that the danger to American democracy posed by “Donald Trump and his allies” is “clear and present.”
Thankfully, here in California, we have the means to hold at least one alleged violator of American democracy accountable for his actions — and reduce the danger near at hand. Through its attorney disciplinary process, California has the power to disbar or suspend an attorney who was central to Trump’s dangerous and unprecedented scheme to remain in power at all costs: John Eastman.
The time is now for the State Bar to act.
As we’ve learned in the 18 months since the insurrection, as first reported in the Washington Post, in the weeks leading up to Jan. 6, 2021, Eastman incorrectly advised Trump and then-Vice President Mike Pence and his staff that it was a “fact” that Pence had unilateral authority to upend the results of the election, either by rejecting key states’ votes for Biden and declaring Trump the winner or by postponing the electoral count indefinitely. To be clear, he was advising Pence to disrupt the peaceful transition of power for the first time in our nation’s history. Eastman and Trump then repeated these false claims, using them to inflame the January 6 crowds and leading to calls to “hang Mike Pence” that were heard in live footage of the Capitol attack later that day.
Eastman’s efforts pose serious ethical and legal questions. That’s why last October, supported by a bipartisan group of lawyers, ethics experts and former judges, the States United Democracy Center asked the State Bar of California to investigate whether Eastman had violated his ethical responsibilities as a California-barred lawyer to be honest and uphold the rule of law. We showed that Eastman knew his advice about Pence’s unilateral authority was false and deceptive. It does not take a constitutional scholar to recognize the speciousness of Eastman’s claims; Pence himself said in remarks last June, “There’s almost no idea more un-American than the notion that any one person could choose the American president.”
Since last fall, more revelations about Eastman’s undemocratic conduct have come to light. In March, a federal judge in Southern California rejected Eastman’s attempt to shield information under attorney-client privilege from the House select committee, holding that it was “more likely than not” that he and Trump committed a felony in trying to obstruct Congress on January 6. Notably, the court found that Eastman’s views were not a “good faith interpretation” of law, but rather, a “partisan distortion ... driven not by preserving the Constitution but by winning the 2020 election.”
The January 6 committee has presented additional compelling evidence that Eastman was fully aware his theory about the vice president’s power was wholly contrary to law. We’ve learned at the hearings that Eastman admitted to Pence’s then-chief counsel, Greg Jacob, that he didn’t think Vice President Kamala Harris should have the unilateral authority he was urging for Pence. Jacob also testified to the committee that Eastman admitted that the notion that the vice president could reject certain votes would lose 9-0 at the Supreme Court. Despite this, as Jacob testified, Eastman pressed on with his demands that Pence delay the counting of the electoral votes, even as the world witnessed in shock the deadly attack on the Capitol.
Perhaps most damning, when Eastman realized that his scheme failed, he asked another Trump attorney, Rudy Giuliani, about getting a pardon before Trump left office (which he did not receive). As we also learned in the hearings, Eastman has since asserted his Fifth Amendment right against self-incrimination — at least 100 times — in response to the House committee.
Eastman used his law license in an effort to orchestrate a coup on American soil. He continues to be a threat to democracy. In addition to his pressure campaign against Pence, Eastman, as we learned at the committee hearings, pressured the speaker of the Arizona House to decertify that state’s 2020 electoral votes, even though there was no evidence of widespread or outcome-determinative fraud. Eastman has continued these efforts long after January 6 and, as reported by ABC News, as recently as this spring in Wisconsin.
Eastman’s actions are part of a broader strategy to undermine our democracy from the inside out. We’ve seen bogus election investigations keep lies about 2020 alive, election hijacking bills in state legislatures, and now people who deny the results of the 2020 election running for office across the country. It’s all connected — these actors are working to have the power to overturn our election results.
California is not powerless against this unprecedented threat. Just as its New York counterpart did nearly one year ago against Giuliani, our State Bar has the power to seek an immediate suspension of Eastman’s license, pending further proceedings to disbar him. After the comprehensive and compelling testimony on display at the House January 6 committee’s hearings, one can only wonder, what is the bar waiting for?