Zealous lawyer or coup architect? The legal theorist behind Jan. 6.
Conservative legal scholar John Eastman has emerged as a key figure for the House Select Committee investigating the Jan. 6 attack on the U.S. Capitol. The former law professor and Trump adviser penned controversial memos arguing that Vice President Mike Pence had authority to reject or delay the counting of electoral votes that day, to prevent the certification of Joe Biden’s victory.
To many, Dr. Eastman’s case raises thorny questions about what lawyers can and should do in proffering legal advice that may break ethics rules or democratic norms – and how much responsibility they bear for how that advice is acted upon.
Why We Wrote This
Should the man who penned a legal justification for halting the transfer of power on Jan. 6 be held accountable for what happened that day? John Eastman says he was simply advancing his client’s interests.
In an article published in September, Dr. Eastman said he had presented the Trump campaign with a range of potential scenarios meant to serve “as the basis of a full discussion of all the options available to our elected leaders, premised on the assumption of proven electoral fraud or illegality.”
Dr. Eastman’s critics, however, say that some of the options he laid out were unethical and even illegal. “What Eastman was proposing was a subversion of the Constitution, was illegal, [and] may very well have been criminal,” says Richard Painter, who served as former President George W. Bush’s chief ethics lawyer.
It was a civil court battle over subpoenaed documents, not a criminal trial. But when federal Judge David Carter ruled last month that President Donald Trump had conspired to overturn a democratic election on Jan. 6, 2021, he didn’t mince words. He called it “a coup in search of a legal theory.”
That theory was provided by John Eastman, the plaintiff in the case – and Mr. Trump’s co-conspirator.
Dr. Eastman was the author of controversial memos arguing that Vice President Mike Pence had the authority to reject or delay the counting of electoral votes during the Jan. 6 joint session of Congress. The conservative legal scholar even spoke at the president’s rally that day, telling the crowd that the vice president must intervene to prevent the certification of Joe Biden’s victory.
Why We Wrote This
Should the man who penned a legal justification for halting the transfer of power on Jan. 6 be held accountable for what happened that day? John Eastman says he was simply advancing his client’s interests.
“Anybody that is not willing to stand up to do it does not deserve to be in the office,” Dr. Eastman said. After the rally, some Trump supporters went on to storm the U.S. Capitol, stunning the nation.
His legal strategy did not persuade Mr. Pence or prevent the certification of the results. But had it worked, wrote Judge Carter, “it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution.”
Dr. Eastman has emerged as a key figure for the House select committee investigating the Capitol attack, which filed the suit in California to force him to turn over thousands of emails. Judge Carter, a Clinton appointee, ruled that since federal crimes had “likely” been committed, the attorney-client privilege that Dr. Eastman was claiming could be waived for certain documents.
The former law professor’s efforts weren’t limited to his memos about the vice president’s role on Jan. 6 – and they didn’t end on that day. Just last month, Dr. Eastman – who was forced to resign from his position at Chapman University in Orange, California, and is currently under investigation by the California state bar association – was reported to have met privately in Wisconsin with Assembly Speaker Robin Vos to urge the state Legislature to overturn the 2020 results. An adviser to GOP gubernatorial candidate and Wisconsin state lawmaker Timothy Ramthun, Dr. Eastman wrote a memo in December laying out the Legislature’s “authority to decertify previously certified electoral votes” in cases of fraud or illegality. Likewise in February, Dr. Eastman was a featured speaker at an “emergency town hall” meeting organized by a conservative group in Colorado focused on “election integrity,” where another speaker called for the hanging of Colorado’s secretary of state.
To many, Dr. Eastman’s case raises thorny questions about what lawyers can and should do in proffering legal advice that may break ethics rules or democratic norms – and how much responsibility they bear for how that advice is acted upon. As the government ramps up its prosecutions of those who violently attacked the Capitol, it remains unclear whether the political leaders and strategists who were trying to halt the transfer of power that day will be held accountable to the same extent.
In an article published last September, Dr. Eastman rejected the notion that he was urging the vice president to overturn the election. He said he had presented the Trump campaign with a range of potential scenarios “grounded in constitutional text,” which were meant to serve “as the basis of a full discussion of all the options available to our elected leaders, premised on the assumption of proven electoral fraud or illegality.”
Randall Miller, an attorney who is representing Dr. Eastman in the California bar case, said that his client expected to be exonerated. “As was his duty as an attorney, Dr. Eastman zealously represented his client, comprehensively exploring legal and constitutional means to advance his client’s interests,” he said in a statement.
Dr. Eastman’s critics, however, say that some of the options he laid out for the Trump campaign were unethical and even illegal – and that he should face consequences. “What Eastman was proposing was a subversion of the Constitution, was illegal, [and] may very well have been criminal,” says Richard Painter, a law professor who served as President George W. Bush’s chief ethics lawyer.
Claims of fraud rejected by courts
At the heart of Dr. Eastman’s legal strategy was his claim that an 1887 law on how Congress should tally and certify electoral votes was unconstitutional – and that therefore the vice president could assert unilateral authority over the process.
In his six-page memo entitled “January 6 scenario,” he wrote that the vice president was “the ultimate arbiter” in certifying electors. That opened the door for Mr. Pence to reject electoral votes cast in key swing states like Wisconsin and Michigan, where Dr. Eastman claimed “state election laws were altered” in the run-up to the election.
He added, “If, after investigation, proven fraud and illegality is insufficient to alter the results of the election,” then the original slate of electors would be valid, and Mr. Biden would be the winner.
But at that point, multiple courts in several states had already rejected electoral fraud cases filed by Mr. Trump’s campaign after the November election. By repeating those disproven claims, Dr. Eastman was contravening the “reasonable belief” that lawyers are obliged to apply, says Professor Painter, who teaches law at the University of Minnesota.
“The lawyer has to operate on the basis of real facts,” he says. “This is not a philosophy class.”
Several of the Trump attorneys who brought the various fraud cases – including former New York Mayor Rudy Giuliani and Sidney Powell – have since been disciplined by state courts for filing frivolous lawsuits; Mr. Giuliani’s license to practice law in New York has been suspended.
“The kinds of claims that these folks were making, the kinds of lies that they were spreading, they really are outside the bounds of what we should expect as professionals,” says Joanna Lydgate, co-founder and chief executive of States United Democracy Center, a nonprofit that advocates for free and fair elections. The group filed a complaint asking the California bar to investigate Dr. Eastman for his role in trying to overturn the 2020 election.
And some see Dr. Eastman’s role as far more significant than that of other Trump lawyers. “This is somebody who is more than just a lackey lawyer offering crazy advice to Trump,” says George Thomas, a professor of American political institutions at Claremont McKenna College in California. “He was trying to offer the constitutional architecture to pull off a coup.”
Abstract theory vs. legal reality
A former clerk for Supreme Court Justice Clarence Thomas, Dr. Eastman joined Chapman University in 1999 and became the dean of its law school in 2007. In 2010 he ran for attorney general in California but lost in the Republican primary.
The eventual winner in that race was Kamala Harris. After Mr. Biden selected her as his running mate in August 2020, Dr. Eastman published an opinion piece in Newsweek questioning whether she was eligible to serve because neither her Jamaican father nor Indian mother were U.S. citizens when she was born in Oakland, California. The U.S. Constitution says natural-born citizens over the age of 35 are eligible for the presidency. Newsweek subsequently disavowed the article and apologized.
Mr. Trump praised the article, describing its author as a “very talented lawyer.”
Within weeks, Dr. Eastman was advising the Trump campaign, although he had no contractual role until after the election, according to court filings. And his novel interpretation of the powers of the vice president in a hitherto ceremonial process – the certification of Electoral College votes – made him a central player in Mr. Trump’s rearguard efforts to stay in office.
Dr. Eastman described the options he laid out in his memo as “BOLD, certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage,” he wrote, adding, “we’re no longer playing by Queensbury Rules, therefore.”
Yet it’s unclear how convinced Dr. Eastman was by his own legal reasoning. In his deposition to the House Jan. 6 panel, Greg Jacobs, former chief counsel to Mr. Pence, said that Dr. Eastman admitted to him in early January 2021 that his plan wouldn’t stand up to scrutiny by the Supreme Court and would likely lose 9-0.
“John Eastman knew that what he was advising Trump to do, and Pence to do, was illegal and didn’t have any basis in the Constitution or historical practices or statutory law,” says Marjorie Cohn, a professor emerita at Thomas Jefferson School of Law in San Diego.
Professor Cohn, a former president of the National Lawyers Guild, compares Dr. Eastman’s legal memos with the “torture memos” written by John Yoo for the Department of Justice under Mr. Bush. The memos interpreted wartime executive powers to justify warrantless surveillance and the use of “harsh interrogation techniques” on detainees held overseas.
The DOJ’s internal watchdog later found that Mr. Yoo, a law professor at the University of California, Berkeley; and Jay Bybee, a federal judge, had both committed “intentional professional misconduct” and violated legal ethics in writing the memos. In 2010, the finding was reduced to exercising “poor judgment.”
That Mr. Yoo, who still teaches law at Berkeley, and Dr. Eastman were both tenured law professors isn’t a coincidence, says Professor Painter. Scholars are trained to debate creative theories and hypotheticals. “The problem is the detachment from facts and the law,” he says.
Mr. Jacobs, the former vice president’s legal counsel, made this point in a testy email exchange with Dr. Eastman on Jan. 6. Even after the Capitol came under siege, Dr. Eastman continued to press for his plan, infuriating Mr. Jacobs, who was with Mr. Pence that day.
“Advising the President of the United States, in an incredibly constitutionally fraught moment, requires a seriousness of purpose, an understanding of the difference between abstract theory and legal reality, and an appreciation of the power of both the office and the bully pulpit that, in my judgment, was entirely absent here,” Mr. Jacobs wrote.
While the House panel continues its investigation, a federal grand jury has begun issuing subpoenas to witnesses for possible criminal proceedings. One subpoena seeks information about members of the executive and legislative branches who may have tried to “obstruct, influence, impede, or delay” congressional certification on Jan. 6, according to The New York Times.
But while Judge Carter found that Mr. Trump and Dr. Eastman had “more likely than not” conspired to obstruct the certification, any criminal trial would require proof “beyond a reasonable doubt,” a higher bar. And many are skeptical that Mr. Trump as a former president could actually be prosecuted for his role on Jan. 6.
It’s unclear whether the same will hold true for Dr. Eastman, the legal architect. The Wall Street Journal’s editorial board recently wrote that Dr. Eastman gave Mr. Trump “awful legal guidance.” But it nonetheless argued that public officials are entitled to solicit a range of options from legal counsel, adding, “If it’s criminal to advise a public official to stretch his powers in dubious ways, then half of Washington should be in jail.”
Ms. Lydgate, a former state prosecutor, disagrees. “I think this was all part of an extremely coordinated effort,” she says. “There has to be consequences for all of those who participated. It was an assault – and it continues to be an assault – on our democracy.”
