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OPINION

California Bar Seeks to Disbar Trump Attorney John Eastman for Nothing

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.
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AP Photo/Yuki Iwamura

State bars around the country continue to ramp up their attacks on conservative attorneys, especially those involved in fighting voter disenfranchisement and suppression. The 65 Project was formed to file complaints against conservative attorneys, to get them disbarred. It’s worked quite well since few election attorneys now dare to represent Kari Lake and other conservative candidates who lost their races due to massive voter disenfranchisement. Last year, the left filed a bar complaint against one of the top conservative legal minds in the country for representing President Donald Trump in his 2020 election challenge efforts, John Eastman, and on Thursday the State Bar of California announced it is seeking to disbar him. 

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The 65 Project filed a complaint against Eastman, a law professor who once clerked for Supreme Court Justice Clarence Thomas and founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, with the U.S. Supreme Court, and the States United Democracy Center (SUDC) filed a complaint with the California Bar. The SUDC is composed of progressive activists like Janet Napolitano and liberal Republicans. The Bar alleges that Eastman advised Trump and Vice President Mike Pence that Pence should not certify the election. But that’s completely false. Eastman went over all the possible legal avenues they could take, he never recommended one, and if anything, he was fairly negative about that option. 

Eastman “determined that, in light of the acknowledged illegality and serious allegations of fraud, one possible option was for the Vice President to accede to requests from numerous state legislators to postpone certification for a brief period to allow the claims of fraud and illegality to be assessed by the state legislatures.”

He wasn’t trying to overturn the election or cause an insurrection, as the Bar characterizes it. He was providing advice on “whether the electoral votes that had been certified were legally certified after state election officials violated numerous provisions of state election law that had been adopted by the legislatures of the several states at issue, violations that unconstitutionally intruded on the legislatures’ plenary power to direct the manner of choosing electors.”

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In fact, “Eastman himself advised the Vice President during the Oval Office meeting on January 4, 2021, that it would be foolish to unilaterally reject electoral votes absent certificate of alternatives from state legislators, even if he had such constitutional authority.”

The Bar accused Eastman of misinterpreting historical sources and said he “knew or was grossly negligent” in “not knowing” that law review articles he cited were “fundamentally flawed.” Law review articles go through a strenuous reviewing and editing process before they can be published, so there was no reason for Eastman to believe they had problems. 

The Bar claimed that “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.” But that’s not true. Almost every conservative election attorney believes, based on historical precedent, that it was a possible option. 

Eastman’s attorney Randall Miller sent a 100-page response to the Bar’s initial investigation, with hundreds of pages of attachments. In it, Miller cited numerous examples in our country’s history where the Vice President deliberately chose to count or not count electoral votes. In 1801, Vice President Thomas Jefferson insisted on counting electoral votes from Georgia despite them having been improperly certified. In 1961, Richard Nixon insisted on counting the Kennedy electors rather than the Nixon electors, even though the Nixon electors had been the ones certified to cast their votes. And so on.

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Eastman cited several legal scholars, some going back to the 1800s, who concluded the Twelfth Amendment gives the Vice President that discretionary option. The Bar and others tried to use statements made by two people critical of this position, but Eastman pointed out that wasn’t taking into account their complete statements. Former Fourth Circuit Judge J. Michael Luttig stated on January 4, 2021, that “John is a brilliant constitutional scholar. Whatever John is telling the President has some basis in the law.”

Similarly, Vice President Pence’s General Counsel, Greg Jacob, advised Pence that legal scholars disagreed about the scope of authority the Vice President had under the Twelfth Amendment. He also stated, “There is some historical evidence that [Vice Presidents] Adams and Jefferson both resolved issues over the validity of electoral votes in their favor.”

The Bar also went after Eastman for his involvement in various Trump election lawsuits. Eastman said the Bar’s complaint “is filled with distortions, half-truths, and outright falsehoods.” The complaint repeated the type of inflammatory language used by irresponsible hack MSM journalists, such as one writing for The New Republic who outrageously characterized Eastman as “plotting to illegally overturn a presidential election.” 

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The Bar said Eastman had engaged in the vague but scary-sounding ethical violations of “moral turpitude, dishonesty, and corruption.” Those are catchall terms in state bars’ Rules of Professional Conduct that are frequently used to target conservative attorneys when the bars can’t get them on anything else. The Bar’s investigations are kept confidential unless the attorney is considered a “threat to the public,” which they outrageously alleged Eastman is. 

Federal prosecutors are also investigating Eastman, seizing his phone last June. Some of the top legal minds in the country support him, including self-described “left-libertarian” Harvey Silverglate, author of Three Felonies a Day: How the Feds Target the Innocent.

The only way the left-wing Bar could disbar Eastman is by falsely describing his actions and ignoring all the exonerating evidence. No one with half a brain believes Eastman was calling for an insurrection. But with the fake news coverage of the proceedings, the Bar may get away with destroying one of the most respected conservative legal minds in the country. This is a terrifying dismantling of the rule of law, creating two tiers of justice for the right versus the left, and leaving the right with few attorneys who dare to represent them.  

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