The State Bar is seeking to disbar Dr. John Eastman. For what, you may ask? Not for theft of millions of dollars from clients. The Bar doesn’t do that if you suck up to the political power structure. Just ask Thomas Girardi, who took millions in client trust funds, which the State Bar ignored for years because Girardi treated the Board of the State Bar to expensive dinners and gifts. So it ignored the dozens of complaints against Girardi for years, allowing him to continue taking his clients’ money.
It isn’t for failure to aggressively and zealously pursue his client’s interests. There are lots of lawyers who fail to do that every day, and they never get investigated, even when a complaint is filed against them. If Dr. Eastman did anything, he aggressively and zealously pursued and protected the interests of the wrong client, that is, President Donald Trump, in a state where doing that is as close to a capital offense as you can get. Democrats across the country believe they were justified in attempting to destroy the life, livelihood, reputation and freedom of hundreds of people whose only sin was supporting Donald Trump, and Dr. Eastman was one of those people. The Democrats very public persecution of Eastman is a warning to all of their political opponents: “Support someone we don’t like, and we will use all the tools at our political disposal to destroy your life and reputation. Be warned.”
The ostensible reason for disbarring Eastman is that he wrote a memo to the Trump campaign outlining how Trump could challenge the outcome of the 2020 election. The State Bar believes that the memo had no legal or factual basis, so Eastman should be disbarred.
Leave aside the fact that disbarring someone for writing a legal memo is somewhat absurd, the fact is the memo itself outlined a legal strategy that advanced his client’s interests, and, in fact, had a basis in law.
The method of electing the President is outlined in Article I, Section 4 and Art. II, Section 1 of the Constitution and the Electoral Count Act that was in effect in 2020. Art. I, Section 4 says that State Legislatures are in charge of the “manner” of conducting federal elections, and Art. II, section 1 of the Constitution says that State Legislatures choose the manner of appointing Presidential Electors. The Electoral Count Act in effect then outlined the procedure for collecting and counting the Electoral College Votes and certifying the winner of the Presidential election.
Whatever one thinks, the language of the Constitution is very clear: State Legislatures write the election law and the law of appointing Presidential Electors. A recent Supreme Court decision that the word “legislature” in the Constitution means “legislative process” which can include the initiative process, but no one has ever held that the word legislature allows states to ignore their election law and do whatever the election officials want.
The 2020 election had several unique features in the “battleground states.” First, in Pennsylvania, Michigan, and Wisconsin, states with Republican-controlled Legislatures, the Democrat Governors of those states used COVID-19 as the excuse to completely rewrite election laws in those states. In Arizona, a federal judge rewrote elections laws without legislative intervention. We can debate the meaning of “legislature” in Art. I, Section 4 and Article II, Section 1, but nowhere in the Constitution is language that gives that power to Governors and federal judges. It turns out that these states were crucial to the outcome of the 2020 election.
There is at the very least a rational legal argument that these states violated the Federal Constitution. The problem is that neither these Constitutional provisions nor the Electoral Count Act (ECA), passed by Congress in the late 1800’s, has any remedies for these violations. The ECA does say that the Electoral Votes will be counted by Congress, but what if the states don’t follow the Constitution in choosing those Electors. How does one legally address those violations?
Eastman wrote that Congress could challenge the appointment of those states which violated the Constitution. There is nothing in the ECA that allows that, but there is nothing that prohibits it either. While I personally disagree with that strategy (I would have followed a different strategy in the election and the affected state legislatures), there is nothing in the Constitution or the ECA that bars or prohibits the strategy he outlined.
Those who say there is are either: (1) ignorant of the law; or (2) deliberately pursuing a strategy of using the law and rules of professional ethics to punish a lawyer, and to take away his livelihood and his reputation, for purely political purposes. Eastman did nothing more than outline for his client a strategy for obtaining the outcome for which the client was working. Given the vagueness of the Constitution and the ECA for remedies for the violations that occurred in 2020, to take Eastman’s license is a pure act of political retribution. It is the worst use of lawfare, and the act of a power structure to punish its political opponents for pursuing a political strategy on behalf of a client with which they disagree. This is an act of a third world political dictator, not the act of those who want an active and vibrant political process.
Of course, California, which is controlled by Democrats at all levels of government, is quickly falling victim to the attempts of Democrats to silence their opposition. They are authoritarians, not caring about precedent, appropriately applying the rules of ethics or anything other than punishing their political opponents. Eastman is the latest victim of the Democrats lawfare, but because his name is not Trump, there is very little attention paid to this abuse of political power by California’s authoritarian power structure by either the media or conservatives.
I am not so egotistical or foolish as to believe anyone actually reads these words, but I felt they must be said. Dr. Eastman is a good lawyer who did nothing by what any good lawyer would do, that is, find a way to help his client achieve the desired outcome in his situation. The fact that this has gotten to this point is another stain on the reputation of the State Bar, since it is allowing itself to a tool of the political power structure. It is also another stain on the California State Government, which has, time after time, used its power to attack its opponents and control its citizens.
Conservatives need to speak up on Dr. Eastman’s behalf, this abuse of power cannot exist in the shadows. It needs to be brought out to the light of day in public. The State Bar Board needs to step up, and prevent this travesty of justice if it wants to retain any credibility, especially after its lack of action in the Girardi theft. They chose to ignore real harm done to the profession by a politically connected lawyer, and are now zealously pursuing a lawyer who simply did his job by suggesting a strategy arguably allowed by the ECA to remedy the Constitutional violations that occurred in 2020. We should all express our displeasure about this abuse of power by writing to the California Supreme Court, which will ultimately decide this case.