Former Republican Jennifer Rubin wrote an opinion piece for The Washington Post last week criticizing Trump attorney John Eastman’s defense in the California bar disbarment trial against him. Unlike her, I’ve watched every minute of the trial, which is going into the third week. The bar is desperately trying to show there was no legal authority for Eastman to advise Trump that Mike Pence could have rejected electoral slates from states suspected of election fraud, but as more evidence comes out, their case is getting weaker and weaker.
Rubin said Pence’s attorney Greg Jacob told Eastman it was “gravely irresponsible for you to entice the President with an academic theory that had no legal viability.” Since Rubin clearly hasn’t bothered watching the trial, she won’t tell you what Jacob said at trial. He contradicted himself.
Eastman’s attorney Randy Miller asked Jacob about a memo he wrote where he stated that “scholars disagree” whether it’s the vice president’s responsibility to substantively deal with accepting electoral slates. Jacob admitted, “There is a section in the Constitution that is at best ambiguous whether the vice president can reject electoral slates.” He cited three legal scholars who wrote articles arguing that the vice president has somewhat of a substantive role in that area, and said this question was “debated and disputed” in law review articles.
Rubin also claimed that a 91-page report authored by the bar’s expert witness Matthew Seligman somehow destroyed Eastman’s defense. The report from Seligman, who has probably been illegally practicing law without an active license while assisting the California bar on this, was all over the board on that issue. Rubin said his report found that the 12th Amendment, the Electoral Count Act of 1887 and congressional precedent show that “the Eastman positions were so devoid of support that ‘no reasonable attorney exercising appropriate diligence in the circumstances would adopt them.’”
However, Miller got Seligman to discuss the legislative debates of the 1876 election, where Republicans wanted the vice president to decide competing sets of electoral slates from some Southern states, but Democrats did not. There, a deal ultimately was reached by a special commission, allowing Republican Rutherford Hayes to become president and Democrat Samuel Tilden conceded. No Republicans were prosecuted nor their attorneys disciplined.
If Seligman thought Eastman’s position was so outrageous, why does he prominently feature a debate between Eastman and progressive legal scholar Lawrence Lessig about it on his website? One of the scholarly articles that Seligman wrote, “Disputed Presidential Elections and the Collapse of Constitutional Norms,” discussed how a political party could have deserted “constitutional norms” “while staying within the strict bounds of the law” to “steal the presidency in 9 of the 34 elections since 1887 and the opposing party would have been powerless to stop the theft.” Tellingly, Seligman wrote the article in 2018, shortly after Hillary Clinton claimed she lost to Trump due to election fraud.
While Seligman was presented as an expert, he doesn’t appear to have any association with elections until about 2020; the scholarship on his website prior to that is papers like “Moral Diversity and Efficient Breach” in 2019 and “The Error Theory of Contract” in 2018. In contrast, Eastman is considered a longtime preeminent legal constitutional scholar on the right.
And let’s not forget the amendment to the Electoral College Act that Congress passed in December 2022. It states that the vice president does not have the authority to reject electoral votes. NPR said it was necessary because “[f]or years, legal scholars have worried the law was poorly written and in need of clarification.” So it’s false that there was clearly no authority for Eastman to have thought it might be an option.
Rubin slammed Eastman for admitting that some of the information he relied on regarding felons and dead people voting had mistakes, which the indictment referenced. However, if she had actually watched the trial, she would have heard that the mistakes didn’t change much substantively. Eastman said he stood by his assertion that 2,500 felons may have voted in Georgia, and corrected the accusation, pointing out he said “as many as 2,500,” not 2,500.
Eastman said the mistake was where election investigator Bryan Geels initially thought there were 66,247 underage people who registered, which Geels corrected later to just over 2,000 voters. Eastman said that was also mischaracterized, since Georgia Secretary of State Brad Raffensburger said he was referring to underage people who had voted, when Geels meant merely registered to vote.
Rubin focused heavily on the concurrent prosecution of Eastman; he was indicted along with Trump and 18 others by politically motivated Fulton County DA Fani Willis, and is reportedly an unindicted co-conspirator in Special Counsel Jack Smith’s federal witch hunt against Trump.
The criminal prosecutions will likely go on for years, since the left wants to drag them out to damage Trump during the presidential race. But it is not likely that the U.S. Supreme Court will uphold a conviction sending Trump — or the others — to prison; not only does the current court lean to the right, but several of the justices were appointed by Trump. They won’t stand for sending a president to prison over politics. Nor will they allow Eastman, a fellow legal academic who once clerked for Justice Clarence Thomas, to be disbarred for the First Amendment.
Rubin gleefully discussed the indictment of Eastman, but failed to discuss how a good prosecutor can get a grand jury to indict a ham sandwich, failed to discuss how RICO laws are so vague and broad they can be used to get anyone, and failed to discuss how attorneys regularly represent some of the most heinous criminals on earth and protect their lies. “Your honor, my client could not have been there bombing all those people since he was with a friend at the time.”
Everyone already knows how Disciplinary Judge Yvette Roland, who contributed recently to Democrats while serving as a judge, is going to rule. Can’t wait for the grown-ups — SCOTUS — to take over.