Disbar ‘coup lawyer’
Former President Donald Trump and his supporters have blamed his indictment on a “two-tiered” justice system. As it happens, we do have a two-tiered system, but here’s a better example of it: Hundreds of ordinary people have been convicted of attacking the Capitol on Jan. 6, 2021, yet not one member of Trump’s inner circle of coup-plotters has faced real accountability for it.
That’s why you should pay attention to the disbarment proceedings that lawyer John Eastman is facing in California. Eastman, who manufactured the bogus theory behind Trump’s effort to overturn his 2020 election loss, could lose his law license — making him the first elite insurrectionist to pay a serious professional price for the coup attempt.
Eastman faces 11 charges from the California State Bar, most concerning his lawyerly lies about election fraud. Importantly, the bar also accused Eastman of advising Vice President Mike Pence that a fabricated legal rationale empowered him to reverse or delay the presidential electoral count in Congress.
“No reasonable attorney with expertise in constitutional or election law would conclude that Pence was legally authorized to take the actions that respondent proposed,” the bar states in its charges. It adds that Eastman knew those actions would violate the law and the Constitution.
If Eastman is disbarred for that charge, it would be genuinely novel. When fellow coup-plotter Rudy Giuliani had his law license suspended in New York last year, it was for the conventional charge of making false statements as a lawyer. Eastman, by contrast, would be sanctioned for corrupting the law to try to subvert our constitutional order and help usurp the presidency.
You’ve heard of “mob lawyers.” Well, the Trump era has brought us the “coup lawyer,” which calls for a new kind of disciplinary response.
The glaring need for this was driven home during Eastman’s bar hearing this week. In a dramatic moment, lawyer Greg Jacob — who advised Pence to resist pressure from Trump to halt the electoral count — testified that Eastman’s invented legal theory had inspired the Jan. 6 rioters.
The rioters had been duped into believing Pence had the power to reverse the election, as the House committee on Jan. 6 demonstrated. Trump had bombarded his followers with this message, based on Eastman’s theory, and as Jacob testified, this bore fruit when rioters stormed the Capitol, many apparently looking to intimidate Pence into doing what Eastman said he could do. As Jacob said: “I thought that it brought our profession into disrepute.”
Given this, it’s beyond absurd that hundreds of people have been prosecuted for invading the Capitol while none of the people who manufactured the legal basis for the false hope that motivated the invaders have faced accountability.
Trump’s coup-plotters carried out all manner of other corrupt acts, yet none has faced serious professional discomfort. Not former White House chief of staff Mark Meadows, who pushed for Pence to execute the plot. Not Jeffrey Clark, who tried to get the Justice Department to fabricate a rationale for reversing Trump’s loss.
Trump himself might face prosecution over Jan. 6, but that’s hardly guaranteed. Eastman might be the only one to face comeuppance, which is sobering, but it would at least send the message that professional sanction awaits lawyerly abuses designed to reverse elections.
True, disciplining lawyers over advice to clients is a tricky business. Eastman’s defense is that his theory was based on a reading of history and the Constitution that’s genuinely contested among scholars. But it strains credulity that Eastman really believed that.
As legal expert Matthew A. Seligman has detailed, Eastman’s theory rested on a tortured reading of constitutional history that essentially invented a vice presidential power to count electoral votes. And it is not a contested issue among scholars. Seligman was set to testify against Eastman as an expert witness, which should drive home his bad faith.
Elite accountability in this country is at a crossroads. Many of the coup-plotters have skated, and though Trump faces prosecution for hoarding classified documents, he might evade accountability for the insurrection. Tucker Carlson’s propaganda about Jan. 6 helped topple the cable host from his Fox News perch, but Elon Musk has created a safe space for his disinformation to continue. Dogged journalism has produced extraordinary revelations about corrupt Supreme Court justices, but Congress’ refusal to place checks on them only reinforces the sense that our elites operate with impunity.
Yet it’s easy to lose sight of the fact that in some respects, our national response to Jan. 6 was surprisingly robust. The House hearings on the insurrection dramatically illustrated its gravity. Many high-profile election-denying candidates lost in 2022. Prosecutions of Jan. 6 rioters have proceeded apace. Congress passed strong protections against another Jan. 6 by a wide bipartisan margin.
If Eastman loses his law license expressly for abusing his professional stature to destroy our constitutional democracy, it would constitute yet another step, however small, in that direction. At the very least, it will send a message: Coup-lawyering will no longer be tolerated.