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 problem is credibility. California is run by gangsters-the government crooks. 700 some odd billion is missing.
Come on Turley: You know that Eastman was properly disbarred for the same reason Giuliani was disbarred —for deliberately lying to courts about nonexistent voter fraud. In Eastman’s case, he was pushing for the fake electors to falsify Electoral College documents and falsely advising that Pence had the power to refuse to accept the certified vote counts.
Turley— as a law professor you also know the difference between a novel legal theory and lying to a tribunal, and that freedom of speech does not constitute a license to lie to courts. A novel legal theory cannot be used to spin lies.
The overturning of Roe v Wade is a poor example. Gorsuch, Barrett and Kavanaugh all lied about their view of stare decisis as applied to the Roe decision— so they could get onto the Court and overturn it. A landmark decision like Roe that found a Constitutional right and which withstood almost 50 years of challenges has never been overturned before. Failing to disbar Eastman would have been a major mistake. And there are no comparable situations involving Democrats challenging election results.
On the subject of challenging election results— today Trump, of course, claimed the referendum results in Virginia were “rigged”—because “all day long the “no” vote was winning”. Someone should explain to him that no votes are counted “during the day” because votes are counted only after the polls are closed.
Here’s a novel thought: sell California to the highest bidder bidder
Give it away and we will pay is more like it. What a loss but look at the kooks we will get rid of.
Start in once-great California and send in the 1st, 25th, 82nd, and 101st and take back America from all the foreign invaders.
I thought we fought all previous wars to protect America.
But America has been invaded and conquered.
My interaction with a young Russian academic who specializes in analyzing
electionf fraud convinced me that our 2020 election was not clean. Our
media, officials and courts really did not want ot exxmine the evidence
on this.
Did the communists cheat in Virginia yesterday?
Subjects of recent posts by Professor Turley have boiled down to assaults on the Rule of Law, and how it’s being used mostly by the leftists to the point of absurdity. Putting concerns forward, actions which could be defined as Tyranny: Arbitrary Rule, Dissent suppression, Fear, Violence, glory, judicial corrosion, corruption, and economic diversion just to name a few.
The left has abandoned Natural Rights, Morality, Facts, and Trust in our founding documents. They use obfuscation, deceit, propaganda and have been known to use surveillance against those they oppose.
Plato postulated that when government degrades Tyranny is the final cycle to a corrupt state. Aristotle warned when those put-upon by Draco Code will rise and rebel. Machiavelli wrote that those who rule oppressively will face uprisings.
I’ll leave with the John Locke Chapter XVIII ‘Of Tyranny’ “The Second Treatise on Civil Government” #199
“As usurpation in the exercise of power which another hath a right to, so tyranny is the exercise of power beyond right, which no-body can have a right to; and this is making use of the power anyone has in his hands, not for the good of those who are under it, but for his own private, separate advantage. When the governor, however entitled, makes not the law, but his will, the rule, and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion….”
GW – bold claims but you provide no evidence. Let me know when Democrats are literally climbing the walls of the Capitol building, shattering windows, and bludgeoning police in order to disrupt the counting of votes.
Surveys have revealed that something like 20% of voters admitted to voting more than once in November 2020 (i.e., they admitted to filling out a mail-in ballot that was signed by someone else). In light of this survey result, how any thinking person can proclaim that the outcome of the 2020 presidential election is beyond reproach is beyond me.
Since we are now a nation that cogitates in sound bites, “If mail-in voting is so reliable, why don’t we have mail-in drug testing”?
Others have justified this aspect of mail-in voting to me by saying that people that share mail-in ballots tend to vote the same anyway. While there is no doubt a lot of truth to that, the people that sign ballots voted by others are invariably the same people that couldn’t be bothered to go to a polling station to vote; they are low-information, low-motivation voters. While suctioning votes from such people might be good for Democrats, it’s lousy for our country.
I have no doubt that in a hundred years, impartial historians will view the illegitimacy 2020 presidential election as beyond any reasonable doubt. The statistics alone are quite damning.
“Surveys have revealed that something like 20% admitted to voting more than once….”
Share your source. There’s no way that’s even possible mathematically. Where did that extra 32 million ballots come from? You can’t even get to 1st base with your assertion.
Sure, LMGTFY:
—
The survey most often cited for that claim is the Rasmussen Reports / Heartland Institute survey conducted November 30–December 6, 2023 of 1,085 likely U.S. voters. In its published question list, one item asked:
“During the 2020 election, did you fill out a ballot, in part or in full, on behalf of a friend or family member, such as a spouse or child?”
In the toplines, 21% answered yes to that question, and another question found 19% of 2020 mail voters said “a friend or family member filled out your ballot, in part or in full, on your behalf.” Rasmussen’s writeup also highlighted those results.
https://www.rasmussenreports.com/public_content/politics/partner_surveys/toplines_2_voters_fraud_heartland_december_2023
—
The Heartland Institute is an American conservative and libertarian 501 nonprofit public policy think tank known for its rejection of both the scientific consensus on climate change and the negative health impacts of smoking.
They are neither credible nor sane.
I did a survey that proves no one voted in 2020 and that Trump and the Russians simply took power.
Remember when Kellyanne Conway famously announced that Trump prefers alternative facts ??
Now we have confirmation that Trump also prefers alternative mathematics.
At today’s hearing RFK Jr. was questioned about Trump’s famous announcement that he had reduced prescription drug prices by 600%.
RFK Jr, replied:
“President Trump has a different way of calculating percentages. If you have a $600 drug and you reduce it to $10, that’s a 600 percent reduction.”
Apparently the MAGA cult is sadly deficient in their understanding of basic math as well as their deficiencies in rational thought and comprehension.
Considering that Trump prefers alternative math, it is little wonder that he has had so many bankruptcies and failed businesses, including casinos where mathematics and probability calculations are vital to making money.
Trump’s businesses didn’t fail. They did exactly what was required – enrich Trump by robbing others.
I believe Eastman’s disbarment is a travesty, but I beg to differ on Elias. I think his involvement in the false dossier went beyond legal advocacy to knowingly pushing falsehoods.
OK….a different standard depending which “which side”? Eastman was disbarred for conniving to overturn an election, encouraging several illegal, fraudulent steps. I’d put his legally reckless behavior in the same category as Marc Elias. I think the message sent was worth it: Go ahead and try to “game” the modern understanding of the Constitution (as pertains to counting up ballots and certifying the winner of Presidential election).
He was a plotter of the soft coup attempt (along with Trump, Bannon, Giuliani, DiGenova, Kerik, Meadows, Clark, Powell). The only reason Trump has a 2nd term is because the Dems put up someone even worse in 2024.
I guess in California we are going to have to go pro se in a political case because lawyers will be afraid to make a right-wing argument for fear of being disbarred.
Folks, stand back. The trolls are doing more gaslighting here than the Hindenburg.
Oh, the insanity!!
It’s criminals, Dio, merely criminals. Oh, there’s so many!
“However, this action leaves troubling questions of consistency and clarity in the standards used to judge lawyers presenting novel or controversial legal arguments.”
– Professor Turley
_____________________
“It depends on what the meaning of the word ‘is’ is.”
– Bill Clinton
So only democrats are entitled to legal representation now, and only in front of judges and juries in states or districts that will guarantee them their favored outcome, huh? This is all going far beyond ‘resembling’ fascism. Did Virginia voters even actually vote for the redistricting? If they did, fine, but Tim Kaine, dem, VA senator, openly admitted 90% of VA voters are Republican. Gee. I wonder why they pushed the redistricting so hard; how do we know when It all stinks to high heaven? All of it.
Many, many of us are not Conservative, and do NOT want what the dems are serving up. They. Do. Not. Care. This is madness, folks. I am seeing people, very kindly IMO, referring to the EU as ‘The European Coalition’. It is no such thing – it is a regime, not any different from regimes of the past, and we should know better.
“Only democrats can win in Virginia.”
– Karl Marx
Eastman made piles of frivolous arguments to try to overturn an clean election. Lawyers do not have a free speech right to disregard their professional responsibilities. Courts need to trust lawyers and Eastman violated that trust multiple times. Eastman got due process and was found guilty.
@Sally
Tell us another, Sally.
All she got to do is ride Sally ride!
Is that an affirmative action power, comradette Sal? Let’s axe Karl. Don’t you have some babies to make. The fertility rate is in a “death spiral.” Don’t you have a higher priority duty to your country?
Yes. Honesty, authenticity and integrity are standards required of all licensed lawyers. Lawyers don’t get to fabricate false narratives to advance their clients’ interests. Those that try need to be shown the exit door to the profession.
The California Supreme Court seems to need CLE on California Rule of Professional Conduct 3.1:
Rule 3.1 Meritorious Claims and Contentions
(a) A lawyer shall not:
. . . .
(2) present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law. [Emphasis on the “unless” part.]
Thank you, Professor Turley, especially for the final line of your article.
The Bar Association needs serious reform.
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.
Olly, Jcc, the California Supreme Court is NOT disbarring Eastman for putting forward ‘novel constitutional theories’. That is not the issue, Turley is being disingenuous by framing this as a punishment for putting forward a legal theory. That is not true.
Eastman made knowingly false statements that were provable to the court and he engaged in an illegal attempt to organize the creation of fake electors to overthrow the 2020 election. Eastman can peddle his legal theories to his heart’s content all day long. BUT, once he is in a courtroom he is bound by strict ethical rules that he swore to abide by when he accepted his law license in California. He broke those rules and there is clear evidence showing he did.
This was not a case of vengeance by the left or a conspiracy against Eastman. He literally got caught lying to the courts and was intentionally making false statements to government officials and Judges.
Eastman’s theories were certainly ‘out there’ and wrong. But….that alone is not what got him in trouble. He can still peddle his theories and ideas. It’s his conduct that got him in trouble. Turley always talks about conduct not being protected by the 1st amendment. Especially in a court for law in front of a judge.
Are you suggesting that Alternate Electors are illegal?
JJC,
Thank you for your insight and analysis.