Trump attorney Eastman wraps himself in First Amendment protections

John “Serpent-in-the-Ear-of-the-President” Eastman defends himself against a litany of withering charges from the California Bar — moral turpitude, dishonesty and/or corruption, willful misconduct and/or gross negligence, trying to reverse the legitimate results of an election, essentially yelling “Fire!” in a crowded theater — in a riveting 112-page defense that seeks to protect his law license.

It was not unreasonable for Eastman to believe there was massive fraud and illegality in the 2020 election and file lawsuits to try to rectify it, he argues.

He was not advocating that former President Donald Trump or former Vice President Mike Pence take any particular course of action in the infamous “coup memos,” but simply laying out possible scenarios.

And the incendiary claims he made before an agitated crowd on Jan. 6 — “We know there was fraud. …We know that dead people voted” — is a matter of free speech, sanctified and protected by the First Amendment.

“American Citizens have the right to question illegality and fraud in the conduct of their elections, and … his intent in making those statements was to expose such illegality and fraud, as was his constitutional right under the First Amendment,” Eastman’s response says. He “DENIES that his statements were false or misleading, or that he knew or was grossly negligent in not knowing that they were false or misleading.”

Eastman’s exhaustive response catalogs, with footnotes and links, just about every conspiracy theory floated over the past two years. His law license remains active as the Bar presses its case against him, he’s still a Senior Fellow at the conservative Claremont Institute and his Constitutional Counsel Group still lists an Anaheim address.

But his GiveSendGo fundraiser seeks $500,000 for his legal defense fund — more than double its original goal of $200,000 — and has raised $313,000 to date. “The left is pure evil out to destroy all that is good,” wrote donor Kathy Gremer, who kicked in $50 on March 1. “I am so sorry for the pain and betrayal you are enduring. At some point what goes around, comes around even if we have to wait until the after life!”

Eastman’s day of reckoning may come a lot sooner. A pre-trial conference on his proposed disbarment is set for May 1, and his trial is scheduled for May 10-12, 16-19 and 23-24.

“The Notice of Disciplinary Charges alleges that Mr. Eastman actively and knowingly participated in an egregious and unprecedented attack on our democracy,” said George Cardona, chief trial counsel, by email. “The Office of Chief Trial Counsel stands ready to present the evidence supporting the charges to the State Bar Court.”

Hard times

It hasn’t been particularly easy being Eastman lately.

In the wake of Jan. 6, he was pressured to leave Chapman University’s law school, where he used to be dean. He also lost his post at the University of Colorado.

He continued to do the sympathetic media circuit, speak at conferences where he was received like a war hero and advise states on how they might decertify their election results — more than a year after the election. Then federal Judge David O. Carter concluded it was “more likely than not” that federal crimes were committed by Eastman and Trump.

They “launched a campaign to overturn a democratic election, an action unprecedented in American history,” Carter wrote. “Their campaign was not confined to the ivory tower – it was a coup in search of a legal theory. The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.”

Then the Jan. 6 committee weighed in, concluding that “Donald J. Trump, John Eastman, and others corruptly attempted to violate the Electoral Count Act of 1887 in an effort to overturn the 2020 Presidential Election.” Both should face criminal charges for obstructing an official proceeding and conspiracy to defraud the United States, it said.

He appeared before a special grand jury in Georgia. And then, after more than a year’s investigation, the California Bar filed its “Notice of Disciplinary Complaint” against him. It’s “filled with distortions, half truths, and outright falsehoods,” he wrote on Substack,  and said he was confident he’ll escape discipline from the California Bar.

While property records indicate he still owns a home in Long Beach, he and his wife have been living in New Mexico, where she grew up. Protesters regularly gather near their Santa Fe home hoisting hand-written neon signs: “Traitors attempt coups,” “Reject fascist tactics” and “Santa Fe rejects J Eastman,” the Albuquerque Journal reported.

“Over the years, the Eastmans have attended neighborhood parties, where they stood out for his stance against the COVID-19 vaccines,” the Journal said. It also said Eastman was remembered in unfriendly terms from his wife’s 40th high school reunion. “He was a jerk, he was arrogant,” one of her classmates told the paper.

He responded with a letter to the editor, assailing it as a mean-spirited and undignified hit job “well beneath the standards of decency that ought to prevail at any reputable newspaper.”

And, given the events of Jan. 6 and Eastman’s championing of free speech, this question may be a bit ironic: “What editor allowed into print an unsubstantiated ‘he’s dangerous’ quotation that might well be taken as an open invitation to violence against us?”

Defense

To recap, Eastman’s memos explored the untested theory that the vice president has the power to accept, reject or send back for further investigation electoral votes from the states, even those already certified by the states. Mike Pence should act without asking permission, Eastman wrote, asserting that the 12th Amendment gave him that power.

Trump seized on these ideas and did not let go. Pence’s rattled attorney told Eastman that “the advice provided has, whether intended to or not, functioned as a serpent in the ear of the President of the United States, the most powerful office in the entire world.”

The California Bar charged him with trying to reverse the results of a legitimate election, and said “no reasonable attorney with expertise in constitutional or election law would have concluded that the Vice President was legally authorized to take the actions respondent proposed.” He knew, or was grossly negligent in not knowing, that the scenarios he outlined were not supported by either the facts or law.

Eastman retorted that he knew no such thing.

“Respondent DENIES that the memo proposed ‘to reverse the legitimate results of the 2020 election,’ ” his response says. “Whether or not the results of the 2020 election were ‘legitimate’ was hotly disputed at the time and remains so. Moreover, none of the scenarios described in the memo would ‘reverse’ ‘legitimate’ election results. …

“The temporary adjournment (of Congress on Jan. 6 as it tallied electoral votes) scenario invited further investigation into the illegality and fraud of the election, and expressly noted that ‘If, after investigation, proven fraud and illegality is insufficient to alter the results of the election, the original slate of electors would remain.’”

The Bar says that he repeated outlandish claims of fraud and illegality in court filings even after being told repeatedly that there was no fraud on a scale that could change the results – even by then-Attorney General Bill Barr.

Eastman responded that he doesn’t view Barr as a credible source. And he quoted legal arguments asserting that, “Although attorneys may not present evidence they know to be false or assist in perpetrating known frauds on the court, they may ethically present evidence that they suspect, but do not personally know, is false.”

Though he continues to repeat fraud claims, Eastman puts much more emphasis on “illegality” — specifically, the steps states took to make voting easier during a global pandemic that weren’t explicitly approved by the state legislatures.

State legislatures hold absolute power to decide how elections can be conducted. In the Trump/Eastman calculus, throwing out millions of votes from states that eased signature requirements or allowed defective ballots to be corrected, without express permission from the Legislature, is warranted, even if it disenfranchises millions of people.

The legal world is watching how this plays out. Potential criminal charges up the stakes. Stay tuned.

“In his response to the State Bar of California’s disciplinary action, John Eastman doubles down,” said Aaron Scherzer, senior counsel at the States United Democracy Center, which filed a complaint against Eastman.

“He refuses to acknowledge the overwhelming evidence that the 2020 election result was not impacted by fraud, and that the outcome reflected the will of the people. This is unfortunate, but not surprising. Eastman has spread lies and conspiracy theories about the election results for over two years.

“Eastman’s plot to try to overturn the 2020 election was — and continues to be — deeply damaging to our democracy. He violated the oath he swore to uphold as an attorney, and the California Bar is rightfully holding him accountable.”

We’ll see how this turns out.