Some Thoughts on John Eastman’s Disbarment

After a long series of proceedings, including a trial and appeal to the California Supreme Court, John Eastman was disbarred. We don’t yet have a formal opinion affirming the recommendation of the California State Bar (trial) Court, but the California Supreme Court announced Eastman’s disbarment on its website.

Eastman, as you’ll recall, was one of the principal architects, along with Kenneth Chesebro (who was disbarred in New York after pleading guilty in Georgia to charges of election interference), of the scheme to overturn the 2020 presidential election. The idea was to come up with a “legal” framework – scare quotes intentional, because one of the hard issues here is how much certainty one must have regarding legal analysis before it can be relied upon by a client – under which Vice President Pence could refuse to certify the election based on electors submitted in several swing states. Pence could then accept alternate slates of electors or, else, declare the election results inconclusive and submit it to the House of Representatives. Eastman also appeared at the “Stop the Steal” rally near the White House, told the crowd that the election had been plagued with fraud and that voting machines had a “secret folder” that was used to falsify results.

Eastman’s justification for all of this is he’s just doing what lawyers do: Representing his client zealously and advancing one side of a controversial issue. Here is his argument on appeal from the California Bar’s trial-level decision recommending disbarment:

This disciplinary prosecution is an extraordinary, unprecedented, and abjectly misguided foray by the California Bar (“Bar”) into the 2020 presidential election, one of the most hotly debated, disputed, and controversial elections in our nation’s history – and in which lawyers on all sides played prominent roles before, during, and after – Dr. Eastman amongst them. Yet, out of that legal conflagration, the Bar selectively plucks Dr. Eastman from the election-litigation scrum to prosecute him for his research, legal advice, role as counsel of record in consequential court cases, and public statements – all on behalf of clients who sought his active and zealous advocacy and legal and constitutional acumen. The stupefying result was the Hearing Department’s 128-page Decision, finding – nearly without exception – that Dr. Eastman’s actions, in an ocean of national legal controversies, were subjectively without basis, ending his career as a lawyer. And, in its wake, ravaging his First Amendment rights to Speech and to Petition the Government. Every attorney, regardless of side, politics, or personal or legal beliefs, should shudder at the notion that they, too, or any of their brethren, can be the subject of the same convenient, trendy, and selective interrogation – undermining the essential role of zealous and impassioned advocacy they swore to uphold and honor. For those reasons, and more, the Hearing Department’s pyre cannot stand.

Okay, the rhetoric is a little over the top, but given that the law firms challenging the executive orders entered against them are making constitutional arguments that sound awfully similar, it is worth taking a closer look at the allegations against Eastman and his defense on the occasion of his disbarment.

Eastman’s Scheme

Eastman’s legal advice was contained in a 6-page memo, which concluded his advice was “BOLD, Certainly,” but the alternate elector scheme was justified because “this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.” The Twelfth Amendment prescribes that the Vice President, “shall . . . open all the certificates and the votes shall then be counted,” which suggests that his responsibilities are merely ministerial. Eastman, however, contended that there is “very solid legal authority, and historical precedent,” for the conclusion that the Vice President, in his capacity as President of the Senate, has the right to resolve disputed electoral votes. Eastman went on to argue that the Electoral Count Act of 1887, which governs the actions of the President of the Senate, is likely unconstitutional, because the Act gives precedence to the certification of votes by the executive of a state, not the legislature. Eastman therefore advised Pence that he had several options, including (i) delaying the vote count, which would allow state legislatures to certify alternate slates of Trump electors; (ii) unilaterally deciding not to count Biden electors where there was a question about the validity of their designation, or (iii) referring the decision to the House of Representatives where “IF the Republicans in the State Delegations stand firm . . . TRUMP WINS.”

Mike Pence, famously and to the everlasting anger of Donald Trump, refused to go along with the scheme. He did so in reliance on the advice of several senior government lawyers, including Jeffrey Rosen, Richard Donoghue, Patrick Philibin, Patrick Cipollone, and Gregg Jacob, whom I’ve referred to as the Good Lawyers of January 6. The D.C. Bar Report and Recommendation of Discipline against Eastman’s co-conspirator Jeffrey Clark has a very good account of the ultimately successful effort by these lawyers to persuade Pence that he did not have the legal authority to refuse to certify the alternate electors. It is vitally important that we remember that a number of lawyers gave the right advice here, in the face of tremendous pressure from Trump. While the disciplinary actions against lawyers like Eastman, Clark, Chesbro, Sidney Powell, and Rudy Giuliani understandably get a lot of attention, I am going to continue to highlight the actions of the lawyers who acted with professional independence (and a backbone) and refused to be steamrollered by their client.

Eastman was one of the bad lawyers of January 6, but in the context of bar grievances flying around against current Trump Administration lawyers, it’s important to be clear on what, exactly, Eastman is being disbarred for. The headlines on this story are understandably meant to be attention-grabbing:

• Lawyer John Eastman Disbarred for Efforts to Overturn 2020 Election (New York Times)

• John Eastman Loses his Law License in California Over 2020 Election Scheme (Politico)

• Former Trump Attorney John Eastman Disbarred in California over 2020 Election Interference Efforts (NBC News)

• Trump Ally John Eastman is Disbarred over Bid to Overturn 2020 Election (Reuters)

But you’ve got to read more carefully in the articles or, better yet, read the decision of the California Bar Court (although it is 128 pages long and a bit of a slog), to see what Eastman was actually disbarred for. Lawyers don’t get disciplined for merely “making efforts” to do things, or coming up with a “scheme” that is presented to clients. There has to be a violation in there somewhere of the applicable rules of professional conduct. Otherwise, Eastman may be onto something with his argument that discipline in his case could have a chilling effect on zealous advocacy. Relatedly, I get a bit impatient with the repeated suggestion that such-and-such lawyer should be disbarred for failing to promote the rule of law or doing things that harm democracy. Democracy and the rule of law are good things, but lawyers are not directly obligated to respect or promote them.

What Were the Charges in the Disciplinary Complaint?

California State Bar Counsel, in its Notice of Disciplinary Charges, alleged that Eastman “continued to work with Trump and others to promote the idea that the outcome of the election was in question and had been stolen from Trump as the result of fraud, disregard of state election law, and misconduct by election officials.” More specifically, the Notice claimed:

• First, he provided legal advice, formulated legal strategies, and engaged in litigation based on, and made public statements propounding, allegations of election fraud that he knew, or was grossly negligent in not knowing, were false.

• Second, based on misinterpretations of historical sources, misinterpretations of law review articles, and law review articles that he knew or was grossly negligent in not knowing were themselves fundamentally flawed, he provided, and proposed actions based on, legal advice regarding the unilateral authority of the Vice President to disregard or delay the counting of electoral votes that he knew, or was grossly negligent in not knowing, was contrary to and unsupported by the historical record and established legal authority and precedent, including the Electoral Count Act and the Twelfth Amendment, such 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.

Professional Discipline and the First Amendment

Eastman’s argument against discipline has consistently been that he was doing nothing more than providing legal advice to his client. Maybe it was bold, but that’s okay. After all, aren’t lawyers supposed to be zealous advocates? To that, Eastman added the First Amendment right to freedom of speech and to petition the government for redress of grievances. And, perhaps surprisingly, the First Amendment protects the right to tell lies.

Bruce Green and Rebecca Roiphe, in their paper “Lawyers and the Lies They Tell,” review the constitutional law protecting false statements. This includes not only the protection against liability for defamation in actions brought by public officials – the New York Times v. Sullivan line of cases, which provide crucial breathing space for speech critical of the exercise of official power – but also more mundane lies. They discuss one of my least favorite First Amendment cases, U.S. v. Alvarez. The Court in Alvarez found invalid as an infringement of the freedom of speech the Stolen Valor Act, which criminalized lying about having received a military decoration for bravery. The Court’s plurality opinion, by Justice Kennedy, said categories like defamation, fraud, and perjury are narrow historically exceptions to the general principle that false speech is fully protected by the First Amendment, and they are the only exceptions that should be recognized.

The reason for Justice Kennedy’s concern is all the usual First Amendment principles: Content-based restrictions on speech are disfavored because it is important to protect the “open and vigorous expression of views in public and private conversation,” and because the idea of falsity is itself manipulable, and may be used by the government to suppress speech with which it disagrees:

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out.

I am fully on board with the commitment to the anti-orthodoxy principle, mistrust of the power of the government to define the set of “truths” that everyone should subscribe to, and the hostility to suppressing disfavored speech. Maybe it’s because I love teaching defamation in my Torts class, and see the fact/opinion distinction as central to the law of defamation, but I have no difficulty distinguishing between an opinion that the government has no business regulating and a verifiably false assertion of fact.

Justice Breyer’s concurring opinion makes exactly this point:

Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law. The dangers of suppressing valuable ideas are lower where, as here, the regulations concern false statements about easily verifiable facts that do not concern such subject matter.

That makes SO much sense to me. There is no discernable constitutional value in a lie about an easily verifiable factual statement, like “I won the Congressional Medal of Honor.” How in the world does that contribute to the search for truth, or democratic self-government, or resisting official power, or any other serious constitutional value?

Okay, you may say, but lies by lawyers are different. Lawyers have a distinctive constitutional role in upholding the rule of law. They are also traditionally recognized as “officers of the court,” with duties of candor to tribunals. Perjury is a crime, and perjury is one of those historical exceptions to First Amendment protection, but in addition to that, lawyers are subject to their state’s version of Model Rule 3.3(a), which prohibits making a false statement of law or fact to a tribunal, and Model Rule 4.1(a), which prohibits making a false statement of material fact or law to anyone. Is that exactly what Eastman did when he pushed the Big Lie about the 2020 presidential election being stolen? Maybe a blowhard political commentator or YouTube personality could say those things, but lawyers’ speech is regulated, and there are serious consequences for lawyers who make false statements of fact (“there was fraud in the election”) or law (“the Vice President has the authority to refuse to certify state electors”).

But here’s the thing, y’all: The category of “professional speech” is dead – deceased, no more, passed on, gone to meet its maker, bereft of life, resting in peace, pushing up daisies, and shuffled off this mortal coil. The Court confirmed this recently and decisively in Chiles v. Salazar, but it was clear from NIFLA v. Becerra in 2018. The Court is very committed to the view that, outside a small number of narrowly circumscribed, historically recognized categories, speech is speech and fully protected by the First Amendment. (I disagree, which is one reason I dislike Alvarez, and also object to the Court’s commercial speech jurisprudence and the campaign-finance cases starting with Buckley v. Valeo, but what can I say? - I’m not on the Court.) The Court’s speech-is-speech position means, potentially, that speech that violates the rules of professional conduct is subject to the same robust First Amendment protection as Alvarez’s claim to have been awarded the Medal of Honor.

What’s Left of Professional Speech Regulation?

I’ve been saying for a while, particularly in reaction to the Upsolve cases finding that New York’s unauthorized practice of law rules may violate the First Amendment, that this kind of First Amendment absolutism creates a genuine puzzle for many of the rules of professional conduct for lawyers. After all, many of the rules, like 3.3 and 4.1, directly regulate speech. Justice Breyer’s concurring opinion in Alvarez proposes intermediate scrutiny – somewhere between “near-automatic condemnation (as ‘strict scrutiny’ implies) [and] near-automatic approval (as is implicit in ‘rational basis’ review),” where the end being served by the regulation is sufficiently important in comparison with the free speech values it implicates. That’s what the Second Circuit did in the Upsolve litigation, concluding that UPL statutes advance important government interests unrelated to the suppression of free speech.

A flat-out lie to a tribunal (that is, a knowing false statement of law or fact) or the filing of a factual and legally unsupported (frivolous) claim violates an important government interest unrelated to the suppression of speech, so maybe most applications of Rule 3.3 and Rule 4.1 would survive intermediate scrutiny. I still think it’s bizarre that there is a First Amendment issue involved in a case where a lawyer files a baseless complaint or knowingly misrepresents a fact to the court. After NIFLA and Alvarez, though, that seems to be the long and the short of it.

The Eastman case is made much more difficult by the mixture of classic lawyerly activities, like providing legal analysis and advice to a client (even if the advice is really aggressive and the position unlikely to succeed), and core political speech, like making a speech to a crowd alleging that there was fraud in the presidential election. Perhaps recognizing this complexity, the California State Bar Court was very careful not to rest its conclusion that Eastman had engaged in sanctionable conduct on the content of the memos he prepared for Trump. Instead, the court relied on Eastman’s specific, verifiably false statements of fact, such as the statement that Dominion voting machines had fraudulently manipulated the election results (trial court order pp. 101-02), or that there was specific evidence of voter fraud in Georgia and Michigan (id., pp. 105-06). Although Eastman contended that he made those statements in subjective good faith, fully believing in their truth, the court found that he was at least grossly negligent in making it, which was sufficient as charged in California as an aspect of moral turpitude (id., pp. 102-03, 106).

As for the show-stopping aspects of the proceeding, which were the allegation that Eastman had engaged in an act of moral turpitude by drafting the memos advancing his theory supporting the Vice President’s authority to certify alternate electors (id., p. 88-90, 106-08), and seeking to pressure Mike Pence’s counsel Greg Jacob to sell Pence on Eastman’s cockamamie theory (id., pp. 103-05), the court used them as aggravating factors supporting a serious sanction for making the specific false statements of fact, but they were not independent grounds for discipline. There is a lot of rhetoric in the trial court’s decision, however, about how Eastman failed to support the Constitution and laws of the United States and participated in a “shared plan to obstruct the lawful function of government” (id., p. 124). Thus, I can see why readers took the trial court decision as standing for the proposition that a lawyer is subject to discipline, even disbarment, for failing to support the Constitution and laws of the United States. If that’s true for Eastman, then why not for Pam Bondi, Todd Blance, Emil Bove, Drew Ensign, Chad Mizelle, Jeannine Pirro, Lindsey Halligan, Boris Epshteyn, and so many other lawyers who have provided material support for Trump’s assault on the rule of law?

There’s nothing wrong with rhetorical flourishes in judicial opinions, of course. I don’t mind the trial court underscoring the seriousness of Eastman’s specific rule violations by tying them to a broader, and very damaging, effort to undermine public confidence in elections – Trump’s “Big Lie.” But I worry that Eastman’s disbarment will lead to a flurry of bar complaints that merely allege, at a high level of generality, that Lawyer X has failed to comply with their obligation to support democracy and the Constitution of the United States. Those should be dismissed straightaway, for both prudential and principled reasons.

Remember: One of the asserted grounds for the executive orders against the law firms was Trump’s belief that they were acting contrary to the national interest. He might easily have adapted language from the disciplinary order against Eastman and added that they are not supporting (the administration’s view of) the laws of the United States – e.g. by promoting DEI or defending undocumented immigrants. This is where the First Amendment has some bite, and all of the district court decisions in the EO cases emphasize that lawyers have to be free to take positions that the government disagrees with.

Well . . . isn’t that true of Eastman’s crazy memo? I might have contended that he should be subject to discipline for some sort of competence (Rule 1.1) or candid advice (Rule 2.1) violation, but the recent trend by the Supreme Court to whittle away the category of professional speech to practically nothing makes me wonder how much vitality those rules have when legal advice pertains to “false statements about philosophy, religion, history, the social sciences, the arts, and the like” (quoting Justice Breyer again). I think we’re in a period of significant uncertainty regarding the intersection of rules of professional conduct and the First Amendment as applied to advocacy in the area of hotly contested social and political issues. The endlessly repeated claim from both sides about “weaponization” lends more support to an approach that simply withdraws the possibility of professional discipline from the field altogether.

I’ve written that we should not expect state bar grievance proceedings to serve as much of a deterrent, or as much of an after-the-fact remedy, for abuses of power by Trump administration lawyers. I’m currently working on a post about the federal officer recusal statute, as litigated in Jeff Clark’s disciplinary proceedings, which might present another obstacle to discipline, even with the McDade Amendment clarifying that lawyers for the federal government are subject to discipline in their jurisdictions of admission. The disbarment of John Eastman doesn’t change my assessment of the field. He made specific factual misrepresentations that supported the disciplinary charges, and then the courts hammered him at the penalty stage for the seriousness of the consequences of his conduct. Serious scholars whom I respect believe that even this is a going too far, given the First Amendment values at stake.

I don’t know where this will end up. John Eastman seems like a bit too much of a goofball for the Supreme Court to take cert on the disbarment proceeding and issue a First Amendment decision that further limits the scope of state rules of professional conduct. Other states, however, like Florida or Texas, have a roadmap for shielding government lawyers involved in high-profile controversies from professional discipline. But the one thing I do feel fairly strongly about is that the Eastman disbarment should not be seen as supporting the position that lawyers are subject to discipline – maybe under a broad catch-all provision of Rule 8.4 – for conduct that can be described as contrary to the Constitution of the United States. The outcome of the EO cases involving Perkins Coie, WilmerHale, Jenner & Block, and Susman Godfrey depends to a great extent on the same constitutional principles that Eastman is asserting.