Day: February 2, 2023

The memos prepared by John Eastman constitute some of the most shocking documentation of the plot to overturn the 2020 election in favor of Donald Trump. Eastman’s legal analysis sets out a range of supposed options by which, during the certification of the electoral vote on Jan. 6, 2021, Vice President Mike Pence could disregard swing-state electors from states supporting Joe Biden and thus hand Trump a second term in office. Delivered to the Trump campaign on Dec. 23, 2020, and Jan. 3, 2021, the memos formed a key part of Trump’s efforts to pressure Pence into overturning the results of a free and fair election. They’re a bracing read, in part because of the smug self-assuredness of Eastman’s prose: “BOLD, Certainly,” Eastman concludes of his scheme in the Jan. 3 memo. 

Bold indeed. Just over two years after Eastman drafted those words, the State Bar of California announced that it will be seeking his disbarment from the practice of law over his role fomenting the Jan. 6 insurrection—and Eastman’s memos play a starring role in the bar’s official filing against him. He has now entered the select club of lawyers finally facing bar discipline for their involvement in efforts to overturn the 2020 election. So far, he remains unbowed, denouncing the bar’s filing on his Substack as “filled with distortions, half truths, and outright falsehoods.” Helpfully, his lawyer also clarified in a Zoom press conference that Eastman “was a lawyer, not Rasputin.”

Arriving weeks after the Jan. 6 committee wrapped up its work, the California bar’s charges against Eastman are a reminder that accountability for the insurrection has been slow in the making. They’re worth a close look to understand what work professional discipline can do in terms of holding lawyers responsible for their role in Jan. 6—as well as what it can’t. 

The bar unveiled the formal Notice of Disciplinary Charges against Eastman 10 months after it first announced its investigation into the erstwhile law professor. Thanks to his prominent role in the events around Jan. 6, including a speech at Trump’s rally before the breach of the Capitol, he had become the subject of multiple bar complaints by lawyers who objected to his fomenting of insurrection. In June 2022, the Jan. 6 committee featured Eastman’s antics prominently in a hearing on Trump’s pressure campaign against Pence, and the committee’s final report recommended that the Justice Department pursue charges against him for obstructing the certification of the electoral vote—echoing the conclusion of Judge David Carter of the U.S. District Court for the Central District of California, who ruled that Eastman had “more likely than not” conspired illegally with Trump to obstruct Congress. Eastman’s lawyers have also stated publicly that their client is “probably a target” in the separate Georgia state investigation into efforts to interfere with the counting of the 2020 vote in that state. The California bar’s case, in other words, represents only one facet of Eastman’s legal problems stemming from his actions in 2020.

The 11 counts against Eastman are styled as violations of California’s Business and Professions Code, the state statute governing attorney behavior alongside the state’s Rules of Professional Conduct. The first count charges Eastman with “failure to support the Constitution and laws of the United States” under Business and Professions Code § 6068(a)—a charge that speaks directly to Eastman’s effort to overturn the results of the 2020 election. Here, the bar also points to its belief that Eastman violated criminal law by “dishonestly conspir[ing] to obstruct the Joint Session of Congress on January 6, 2021.” (The notice of charges points to 18 U.S.C. § 371, the general conspiracy statute, but this description also seems to include 18 U.S.C. § 1512, obstruction of an official proceeding—in this case, Congress’s certification of the election.)

Of the 10 subsequent counts against Eastman, two focus on alleged violations of Business and Professions Code § 6068(d), which prohibits misleading a court. Here, the bar points to Eastman’s filings on behalf of Trump in two December 2020 court cases attempting to block the certification of the electoral vote: a motion to add Trump as a plaintiff in Texas v. Pennsylvania, a lawsuit seeking to block Biden electors from swing states from the Electoral College, and a complaint to “decertify” Georgia’s electoral vote in Trump v. Kemp. Both filings, the bar asserts, included “false and misleading statements” alleging election fraud even though there existed “no evidence upon which a reasonable attorney would rely” of such wrongdoing. 

Notably, Eastman filed the complaint in Trump v. Kemp on Dec. 31, 2020—just three days before the Washington Post reported that Trump had called Georgia Secretary of State Brad Raffensperger demanding that Raffensperger “find 11,870 votes” to flip the election to Trump. The court denied the Trump team’s request for a preliminary injunction on Jan. 5, the day before the insurrection, writing that Trump had requested “an extraordinary and unprecedented remedy” that would “breed confusion, undermine the public’s trust in the election, and potentially disenfranchise of [sic] millions of Georgia voters.”

By this point, Texas v. Pennsylvania had already foundered, with the Supreme Court declining to hear the case on Dec. 11. Texas Attorney General Ken Paxton, who filed the case, is currently facing disciplinary proceedings brought by the State Bar of Texas over his role in the litigation. The charges against Paxton are similar to those brought by the California bar against Eastman: Paxton, the Texas bar alleges, made “dishonest” assertions of election fraud “not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence,” in violation of Texas Disciplinary Rule of Professional Conduct 8.04(a). 

The eight remaining counts against Eastman charge him with “moral turpitude,” which “constitutes a cause for disbarment or suspension” under California’s Business and Professions Code § 6106. The conduct described here generally falls into two categories: falsehoods about election fraud, along the lines of the charges under § 6068(d), and what the California bar alleges was knowingly incorrect and misleading legal analysis about what should be done in response. The bar points to the two memos drafted by Eastman, along with an irate email from Eastman to Pence’s counsel Greg Jacob in the midst of the insurrection, as well as a string of public comments including a Jan. 2 appearance by Eastman on Steve Bannon’s radio show, Eastman’s Jan. 6 speech, and a post-Jan. 6 essay defending his actions in the conservative publication the American Mind.

Examining the possibility of professional discipline for Eastman in October 2021, Paul Rosenzweig wrote in Lawfare that Eastman might seek to defend himself against discipline for his warped legal analysis by arguing that his theory of the electoral count, though misguided, was held in good faith. In Rosenzweig’s view, “any disciplinary charge related to that event would turn on how the bar and the adjudicative finder characterized Eastman’s intent”—which could be difficult to establish. Yet thanks to the Jan. 6 committee’s report, the California bar is armed with some new and significant evidence suggesting that Eastman really did know his legal reasoning was incorrect. Most importantly, the bar points to an email sent by Eastman in October 2020 in which he decried as incorrect the same legal theory—concerning Pence’s supposed ability to determine which electoral votes to accept when presiding over Congress’s count—that Eastman would aggressively adopt only two months later. That certainly does seem to suggest that Eastman intentionally misrepresented the law. 

But the notice of charges states that Eastman could still be in trouble even if he could otherwise plausibly argue that his advice was provided in good faith. Eastman is charged with intentional misrepresentation under § 6106—for which a good-faith defense may be more straightforward. The bar, however, also argues that even if he is not found to have acted intentionally, he has still violated the statute by engaging in “grossly negligent conduct” when it comes to both his shoddy legal analysis and his “false and misleading” statements about election fraud. That said, when it comes to Eastman’s legal analysis, it could be hard for the bar to show that Eastman acted in good faith and that he was grossly negligent—unless the argument is that Eastman was so poor a lawyer that he couldn’t recognize the flaws in his argument.

Eastman’s is only the latest case of bar discipline to result from Trump’s effort to overturn the 2020 election. In addition to the Texas bar’s case against Paxton, bar authorities there are pursuing discipline against Sidney Powell for her role in the “Kraken” litigation. In Washington, D.C., both Rudy Giuliani and former Justice Department official Jeffrey Clark—who lobbied for Trump to elevate him to the role of attorney general in order to spearhead Justice Department efforts to keep Trump in office—are defending themselves against cases brought by the D.C. bar. Giuliani is also under ongoing investigation by the New York bar, which has led to the suspension of his law license in both New York and D.C. while the investigation continues. The charges against Powell and Giuliani stem from their courtroom conduct in litigating cases based on falsehoods about election fraud. The D.C. case against Clark has focused on his drafting of a “Proof of Concept” letter from the Justice Department that would have falsely informed Georgia legislators that the department had “identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.”

When the charges against Eastman are read alongside the disciplinary filings in these other cases, the California bar’s approach seems more aggressive and expansive than that of the D.C. and Texas state bars. Though Paxton, Powell, and Giuliani all made public statements alleging election fraud following the 2020 vote—remember Giuliani’s press conference at Four Seasons Total Landscaping?—only the case against Eastman incorporates those comments into the charges against him. The Texas and D.C. bars, rather, have focused their cases against Paxton, Powell, and Giuliani on those lawyers’ conduct within the courtroom: statements they made in legal filings and while arguing before a judge. That’s at the dead center of what bar discipline is for. By incorporating Eastman’s public comments on Bannon’s War Room show and his Jan. 6 speech, the California bar is extending its reach outside the heavily regulated space of the courtroom and treading closer to the line of protected First Amendment speech.

The bar certainly has a case that Eastman’s public comments are appropriate fodder for discipline, insofar as those comments relate to his legal representation of Trump at the time. But Eastman may also have a real First Amendment defense to raise here, and he has hinted that he will do so. As Rosenzweig wrote in 2021 when speculating about what charges Eastman might face from the California bar, this aspect of the case is not “a slam-dunk for the bar disciplinary authorities.”

The California bar’s statement announcing the charges against Eastman makes clear that the bar understands the case as part of a broader effort to protect democracy and show that behavior like Eastman’s is unacceptable. “For California attorneys, adherence to the U.S. and California Constitutions is their highest legal duty,” said Chief Trial Counsel George Cardona, describing how Eastman allegedly “violated this duty in furtherance of an attempt to usurp the will of the American people and overturn election results for the highest office in the land—an egregious and unprecedented attack on our democracy—for which he must be held accountable.” And it’s welcome to see state bars take on the responsibility of disciplining their members for attempting to overthrow the results of a free and fair election. (If you’re interested in more on this, I’m currently working on a longer essay about the role of professional discipline in pushing back on political lies, which should be published soon by the Knight First Amendment Institute.)

Yet there’s a limit to what bar discipline can accomplish when it comes to accountability. Only a small number of attorneys are currently facing discipline, despite the many lawyers who signed on to cases seeking to somehow interfere with the counting of the vote in 2020 or who otherwise played a role in the insurrection. Consider Texas v. Pennsylvania, in which 17 Republican attorneys general signed on as amici; none of those 17 state bars has so far taken any public action for these lawyers’ propagation of election lies before the Supreme Court, despite the case against Paxton. Perhaps these state bars are investigating, but because such probes are typically confidential, there’s no way to know. Similarly, Judge Linda Parker of the U.S. District Court for the Eastern District of Michigan referred Powell and the rest of her legal team to their respective state bars for investigation over misconduct in the Michigan “Kraken” case, yet only Powell has faced charges. 

And bar discipline takes time. Eastman is only now facing potential disbarment over actions he took two years ago. The Texas and D.C. discipline cases were brought over a year after the conduct in question. Of course it takes bar investigators time to build a case—but by now, the “big lie” propagated by these lawyers has become an integral part of American politics. The California bar seeks to discipline Eastman in part for seeking to “encourage the general public to question the legitimacy of the election results,” but it’s far too late to repair the damage done.

In fact, Eastman, Powell, and the others have turned the persistence of the big lie into an asset while defending themselves against bar discipline. Rather than acknowledging that their claims of election fraud were built on lies, these lawyers have dug in further. Responding to the D.C. bar charges against him, for example, Giuliani repeatedly cited the widely debunked election-fraud documentary “2,000 Mules.” A press release that Eastman posted on his Substack insists that the 2020 election was “fraught with illegality and serious allegations of fraud.”

Almost uniformly, they’ve presented themselves as martyrs of a politically motivated witch hunt. Eastman’s press release announces, “The complaint filed against Eastman that triggered today’s action by the State Bar is part of a nationwide effort to use the bar discipline process to penalize attorneys who opposed the current administration in the last Presidential election.” Likewise, Paxton took a confrontational posture against the Texas bar, declaring, “I’ll see you and the leftists that control you in court.” Powell has argued in court that the bar complaints against her were filed by individuals who “seek to intimidate, harass, and suppress the ability of public officials or individuals to secure legal representation when they had evidence of election fraud.” Clark, for his part, has developed a combative, hard-right Twitter presence at odds with the New York Times’s description of him during his time in the Justice Department as “quiet, hard-working and detail-oriented”: His pinned tweet reads, “My name is Jeff Clark, hated by the Left.” 

All this is unlikely to endear this little band to the state bars seeking to discipline them. But that’s not the point. The community of people who believe in the big lie is sufficiently large and entrenched enough that bar discipline—even disbarment—may not matter if lawyers can successfully situate themselves within the cozy confines of the pro-Trump media and political ecosystem. They can keep appearing on Fox News or, as in the case of Giuliani, hosting a radio show. They can win political office with support from Republican voters who are either enthusiastic about their election denialism or simply don’t care: Paxton won a third term as Texas attorney general even after the bar announced its case against him. They can raise money, too: Both Clark and Eastman have set up fundraising pages on GiveSendGo, a GoFundMe alternative that identifies itself as “made by Christians” and has been used by the Proud Boys.

From here, Eastman’s case will proceed to California’s State Bar Court, which hears discipline cases brought by the state bar against California lawyers. Eastman will soon have an opportunity to file a response to the bar’s notice of charges. Something tells me that he’s unlikely to be particularly contrite.