Trump Attorney Eastman Should Be Disbarred, State Judge Says (2) – Bloomberg Law
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By Joyce E. Cutler
John Eastman should be disbarred for knowingly making bogus, unfounded arguments that alleged election irregularities cost Donald Trump the White House, undermining the Constitution and faith in the electoral process, a California judge ruled Wednesday.
California State Bar Court Judge Yvette D. Roland rejected Eastman’s contentions he was acting in good faith in advising a client and was exercising his First Amendment rights in comments, writings, and the remarks he made at the Jan. 6, 2021, rally at the National Mall ahead of the assault upon the US Capitol.
Eastman asserted that then-Vice President Mike Pence could delay counting electoral votes in the 2020 presidential election, which had no support in historical or legal precedent, and stated votes cast in the name of dead people contributed to Trump’s loss, which had no basis in fact, the judge said.
“Eastman’s wrongdoing was committed directly in the course and scope of his representation of President Trump and the Trump Campaign,” Roland said. “This is an important factor, as it constitutes a fundamental breach of an attorney’s core ethical duties.”
His refusal to accept accountability and lack of remorse for his actions fueled Roland’s judgment. Eastman “has exhibited an unwillingness to acknowledge any ethical lapses regarding his actions, demonstrating an apparent inability to accept responsibility,” the judge said. “This lack of remorse and accountability presents a significant risk that Eastman may engage in further unethical conduct, compounding the threat to the public.”
Eastman will seek relief in the State Bar Court review department, which is the court’s appellate division, according to a statement released by his attorney Randall Miller.
Eastman maintains his handling of the legal issues “was based on reliable legal precedent, prior presidential elections, research of constitutional text, and extensive scholarly material,” the statement said. “The process undertaken by Dr. Eastman in 2020 is the same process taken by lawyers every day and everywhere—indeed, that is the essence of what lawyers do. They are ethically bound to be zealous advocates for their clients—a duty Dr. Eastman holds inviolate.”
Eastman’s trial started in June and continued sporadically for 33 days before wrapping up in early November. Among those who testified were former US Circuit Judge Janice Rogers Brown, who vouched for his character, and one-time Justice Department attorney John Yoo, an Eastman friend and fellow law professor.
Others testifying in support of Eastman asserted, but had difficulty establishing, they had statistical evidence proving there had been widespread, decisive, fraud in 2020 US presidential election.
“The harm caused by Mr. Eastman’s abandonment of his duties as a lawyer, and the threat his actions posed to our democracy, more than warrant his disbarment,” bar Chief Trial Counsel George Cardona said in statement.
The California State Bar Court is the nation’s only court devoted to lawyer discipline. Eastman can appeal Roland’s order to the court’s Hearing Department, an appellate level review. The California Supreme Court makes the ultimate decision about lawyer admission and discipline. Eastman has said he could seek US Supreme Court review.
Christine P. Sun, senior vice president of legal at the States United Democracy Center that filed the bar complaint against Eastman, called the ruling “a crucial victory in the effort to hold accountable those who tried to overturn the 2020 election.”
“We are pleased that our ethics complaint helped lay the groundwork for the court’s finding that Eastman should be permanently disbarred. This decision sends an unmistakable message: No one is above the law—not presidents, and not their lawyers,” Sun said in a statement.
Roland’s ruling, if upheld by the state’s top court, would effectively end the conservative former Chapman University law dean’s legal career. Eastman also faces criminal charges in a Fulton County, Ga., grand jury indictment alleging he, Trump, and 17 others attempted to overturn the election results. The professor and the president have each entered pleas of not guilty.
“Any reasonable person can see the inherent unfairness of prohibiting a presumed-innocent defendant from being able to earn the funds needed to pay for the enormous expenses required to defend himself, in the profession in which he has long been licensed,” Eastman’s statement said. “That is not justice and serves no legitimate purpose to protect the public.”
Favorable character comments from Brown, among others, and a clean record for discipline couldn’t outweigh the effects of Eastman’s actions, Roland said.
Eastman was charged with failing to support the Constitution and laws of the United States and moral turpitude for violating his legal and ethical obligations. The bar contended that public protection required that he lose his license to practice. Roland agreed.
“Eastman, as a constitutional scholar, understood that alternate, contingent or ‘dual’ slates of non-certified electors would carry no import on January 6 during the counting of electoral votes,” Roland said.
“Lawyers have a special obligation to the rule of law,” Sen. Thomas Umberg (D), chairman of the state Senate Judiciary Committee, said in an interview. “And they have an obligation to the constitution. And first and foremost is not to commit a crime themselves and not aid and abet a crime as destructive as trying to subvert democracy.”
The court rejected Eastman’s arguments that his remarks were protected by the First Amendment, noting that there “is little doubt” that the state’s interest “to protect the public, maintain the highest professional standards by attorneys, and preserve public confidence in the legal system, outweighs any potential free speech rights attorneys may assert in making false and misleading statements.”
Attorneys have a First Amendment right to make statements in public in the course of their professional duties. “However, this right does not extend to making knowing or reckless false statements of fact or law,” Roland said, which she said Eastman did.
“Likewise, the First Amendment does not protect speech that is employed as a tool in the commission of a crime,” the court said. “Attorneys do not have a constitutional right to collaborate with clients for purposes that are unlawful, criminal, or fraudulent” under the Rules of Professional Conduct Rule 1.2.1 prohibiting an attorney from advising or assisting the violation of law.
“It follows then that Eastman can face disciplinary action for his speech in assisting and advising President Trump in illegal, criminal, or fraudulent activities.”
The court recommended that Eastman pay $10,000 in sanctions, double the amount normally imposed in disbarments.
That sanction includes $5,000 for misconduct in filing several pleadings seeking to mislead the courts and $5,000 “for making numerous false and misleading statements” about the 2020 election, including about Pence’s authority and for collaborating with Trump to impede vote-counting.
The court found the Office of Chief Trial Counsel, the bar’s prosecutors, satisfied its burden of proving all charges except one count regarding remarks made at the rally on the Mall. “Although four of the five statements made at the Ellipse were false and misleading, the OCTC failed to provide any evidence that Eastman’s statements ‘contributed to provoking the crowd to assault and breach the Capitol,” Roland said, “when such harm was foreseeable.”
Eastman’s remarks followed Rudolph Giuliani’s “let’s have trial by combat”—and “preceded Trump’s comments—’fight like hell’ to save the country—but OCTC presented no evidence to show that Eastman’s statements contributed to the assault on the Capitol,” the judge said.
Roland during the trial cited a Southern California federal judge’s holding that Eastman and Trump “more likely than not” committed criminal conduct. She again pointed to that ruling in her order.
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, ruling 3/27/24.
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