Below is my column in the California Post and New York Post on the disbarment of John Eastman. I criticized the January 6th speeches while they were being given and disagreed with the legal theories presented to stop the certification. However, this action leaves troubling questions of consistency and clarity in the standards used to judge lawyers presenting novel or controversial legal arguments. It also is likely to have a chilling effect on the exercise of free speech by lawyers.
Here is the column:
Last week, the California Supreme Court upheld the disbarment of John Eastman. It is a decision that will prevent Eastman from practicing law – the most serious punishment the California State Bar can deliver.
Eastman is the former dean of the law school at Chapman University in California. He represented President Donald Trump in some of his election challenges in 2020.
In 2020, I publicly disagreed with Eastman’s legal theory that Congress could block the certification of President Joe Biden.
However, Eastman’s disbarment should be a concern for everyone who values the rule of law and free speech.
After the election, various legal advisers told Trump that there wasn’t enough evidence of fraud to overturn the election –– as some of us in the media also said.
But Eastman and other lawyers believed there were still arguable grounds to challenge the certification.
In the past, Democrats in Congress had moved to block the certification of Republican presidents, and Eastman believed that their playbook was legal, or at least defensible.
Election disputes are often difficult to resolve in court because time is quite limited.
As the date for the 2020 certification approached, Rudy Giuliani, Sidney Powell, and others made sensational claims about voting machines and other conspiracies that they later admitted were not supported by evidence.
The courts uniformly rejected these challenges.
Eastman is being punished for a different reason: He helped to develop Trump’s legal argument for blocking the election certification.
He admitted that there were few cases to cite as precedent, and acknowledged that he and the Trump legal team were advancing novel theories.
But that is not unusual in controversial cases.
Public interest attorneys often advance novel legal arguments, challenging existing precedent and the status quo. Even longstanding precedents, like Roe v. Wade, have been overturned after years of litigation.California State Bar officials failed to address the implications that disbarring Eastman would have on other cases in which new legal theories are tested.
The animus of the California State Bar was also evident in the original charges against Eastman. He was ultimately found guilty on 10 of 11 charges of egregious and deceitful conduct.
The lower court’s decision placed great emphasis on Eastman’s public remarks on Jan. 6, 2021, at Trump’s “Stop the Steal” rally. The court dismissed his claims that his speech was protected by the First Amendment.
Democratic Party election lawyers have been punished by courts and accused of meritless or unsupported claims. However, bar associations in “blue” states have not moved to disbar them, and I would not support such an effort.
Take Democrat attorney Marc Elias. He was a critical player in the infamous Steele dossier on “Russia collusion,” and helped push the false Alfa Bank conspiracy.
In Maryland, Elias’s team filed in support of an abusive gerrymandering of the election districts that a court found not only violated Maryland law, but also the state constitution’s equal protection, free speech and free elections clauses. The court found that the map “subverts the will of those governed.”
In 2024, the chief judge of the Western District of Wisconsin not only rejected but ridiculed the Elias Law Group for one of its challenges. Judge James Peterson (an Obama appointee) said that the argument “simply does not make any sense.”
Elias has been sanctioned in court. However, neither he nor his associates were, of course, disbarred over prior challenges.
The California Bar and the California Supreme Court insist that they are merely imposing minimal standards of conduct in disbarring Eastman.
However, the record in this matter shows more distemper than deliberation on critical points.
The California State Bar has created new problems, rather than clarifying standards.
Even as someone who disagreed with John Eastman, I am not sure what the standard is for zealous advocacy by attorneys.
While Eastman was giving bad advice, he was not committing a crime or, in my view, committing an offense that deserved disbarment.
There cannot be a different standard for different candidates, or different clients.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
The United States is a “Constitutional Democratic Republican” – that means maximum individual freedoms as long as one person’s exercise doesn’t infringe on another person’s constitutional rights.
In American constitutional rule of law that means all local, state and federal laws/practices must “circumscribe” the U.S. Constitution spelled out most clearly in Article VI of the U.S. Constitution.
It also means that local, state and federal officials (anyone with governing authority including private contractors/private surrogates) swears supreme loyalty to the U.S. Constitution in their job authority. If you disagree with the U.S. Constitution on religious grounds, you can still do that on your private time in your private clubs and churches, but you can’t violate the U.S. Constitution using your governing authority at your day job.
Trump seems to give illegal and unconstitutional orders on a daily basis to subordinates. Trump is routinely disloyal to his own Oath of Office. Trump may be great at business but government is not really his skill set.
Since this is the system of American constitutional rule of law since 1791, this is very much the business of state legal bar associations policing American lawyers. Eastman should apologize, show contrition and he will likely be reinstated.
I have known John Eastman for many years and have always known him to be a brilliant lawyer, honest, trustworthy, and patriotic. He does not deserve this unjustified embarrassment. Richard A. Posner, a retired U.S. appellate court judge and a leading expert on the law, in his book, “Frontiers of Legal Theory,” acknowledges the value of bringing novel theories to the law. Posner says, “Advances in nonlegal fields – such as economics, game theory, social and political theory, cognitive psychology, and even literary theory – have forged new tools for the study of law ….” Eastman’s theory of election certification fits this description. I hope that Governor Steve Hilton will petition the California Bar Association to reverse this abomination and restore John Eastman’s reputation and livelihood.
jjc, I really like how you framed that. People forget that a lot of what we now call “settled law” started as somebody’s weird new idea that didn’t fit the old boxes. Posner’s whole point is that law actually gets better when serious people bring in new tools and new ways of thinking, not when we punish them for it.
Whatever anyone thinks of Eastman’s theory, turning a novel approach into a career death sentence is the exact opposite of what Posner was arguing for. If Steve Hilton does end up as governor, I would love to see him use that platform to push the bar to undo this and make clear that California is not going to treat legal creativity as a moral crime.