Trump Lawyer Eastman's Character, Integrity, License on Line – Bloomberg Law
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Americas+1 212 318 2000
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Asia Pacific+65 6212 1000
By Joyce E. Cutler
John Eastman defended his urging Vice President Mike Pence to delay certifying electors in the 2020 presidential election, telling a California State Bar Court judge Tuesday that he was in constitutional terms “petitioning an officer of the government for redress of rather serious grievances.”
Eastman is charged with 11 counts of violating moral turpitude, ethics rules, and state law regulating lawyer conduct related to memos he wrote to Trump campaign officials and for remarks leading up to the Jan. 6 raid on the US Capitol. He again took the stand in the seventh week of trial. The state bar seeks to have the former Chapman University law dean disbarred.
Eastman, who was hired by the Trump campaign, said he was invited to a Jan. 5, 2020, meeting at the White House. That was after he wrote two memos outlining potential scenarios where slates of electors could be rejected, including unproven allegations of election misconduct and fraud. Those memos “were merely for internal discussion purposes with a couple of members of the team with whom I was working,” he said.
President Trump, Pence, Pence’s chief legal counsel, chief of staff, and Trump chief of staff Mark Meadows attended the meeting that lasted 60 to 90 minutes, Eastman said during questioning by his attorney Randall Miller. Pence during the meeting asked if Eastman thought the vice president had the power simply to reject electoral votes.
“And I said, this is etched in my mind, almost verbatim, ‘Mr. Vice President, it’s an open question. The issue has never been resolved. But I think that even if you had that power, under these circumstances, it would be foolish to exercise it,’” Eastman said.
Some 100 legislators made allegations of fraud, and asked for a brief delay to investigate whether those claims of illegality affected the election’s outcome, Eastman said.
“I was urging him to take some action in his capacity as president of the Senate,” he said. “To put it in constitutional terms, I would say I was petitioning an officer of the government for redress of rather serious grievances.”
The bar rested its case and now the defense is laying out the argument that Eastman’s actions were lawful and based on his scholarly understanding of the US Constitution and facts as presented to him.
The trial originally scheduled for eight days has stretched this week into 24 days, with additional days possible for closing arguments. State Bar Court Judge Yvette Roland said she can allow up to 21 days for post-trial briefing. The judge will issue her decision within 90 days under the Rules of Procedure of the State Bar of California. Eastman can appeal the ruling to the Hearing Department, which acts as an appellate court.
The ultimate decision on Eastman’s law license rests with the California Supreme Court, which oversees attorney discipline and admission.
Still to testify are character witnesses, including former circuit Judge Janice Rogers Brown, now a fellow at University of California Berkeley.
Eastman said he had the sense from the White House meeting that Pence’s counsel
Jacob testified in June there was nothing in the legislative history of the Electoral Count Act or in law that supported Eastman’s argument that the vice president could assert authority over election certification and delay the vote count.
After extensively researching the constitutional convention, “one thing that is clear from these records is that the framers of the Constitution did not want the Congress having a role in choosing of the president,” Eastman said.
Eastman argues he was advising a client and the bar is attempting to punish him for taking unpopular positions on behalf of clients. He testified his remarks on Jan. 6 didn’t rise to imminent harm.
Separately, Trump, Eastman, and 17 others were indicted in Georgia on racketeering charges in the plan to declare Trump as winner in the presidential election. Eastman pleaded not guilty.
A question is whether the First Amendment protects lawyers who knowingly lie to the public, said Stephen Gillers, a New York University law professor.
“Many professional conduct rules do limit lawyer speech in ways that the amendment would not allow for non-lawyers or even for lawyers who are not representing clients on the subject of the speech,” Gillers said in an email. “So a decision that the amendment does not protect Eastman’s speech would not be a total surprise.”
Yet another issue is whether California Business & Professions Code section 6106 gives lawyers constitutionally sufficient notice of the conduct that is forbidden, Gillers said. “It would not if this were a criminal case but the courts have accepted less precision in the description of the forbidden conduct for lawyer discipline,” he said.
The Office of Chief Trial Counsel represents the bar. Miller Law Associates APC represents Eastman.
The case is In re Eastman, Cal. State Bar, No. SBC-23-O-30029, hearing 10/17/23.
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