Disbarment of lawyer John Eastman is bad news for Donald Trump
Category: News & Politics
Via: tig • 9 months ago • 37 commentsBy: Dennis Aftergut, former federal prosecutor and Neil Goteiner, California trial lawyer
S E E D E D C O N T E N T
Last week, the California State Bar Court recommended the disbarment of former law professor John Eastman, a primary legal architect of Donald Trump's plot to obstruct the 2020 election. Importantly, the California case, which is technically still subject to appeal, also undermines a defense Trump has said he may want to use in his (now delayed) federal Jan. 6 criminal trial: that he relied on the advice of Eastman.
Such an "advice-of-counsel" defense, if successful, could absolve Trump of the criminal intent necessary to convict him. But defendants who raise this defense waive their attorney-client privilege. Revealing confidential communications is always a huge risk, and Eastman's weeks long disbarment hearing certainly won't make the legal landscape any easier. As California State Bar Judge Yvette Roland's meticulous, 128-page decision concluded:
Eastman conspired with President Trump to obstruct a lawful function of the government of the United States; specifically, by conspiring to disrupt the electoral count on January 6, 2021, in violation of [the federal conspiracy statute].
That's bad news for Trump. For jurors to credit the "advice-of-counsel" defense in any future criminal trial, Trump has to convince them that he reasonably followed his attorney's advice in good faith. If Eastman's conduct did amount to a criminal conspiracy, as Judge Roland found, Trump will start out behind the eight ball in proving that he was reasonable taking the legal advice of an accomplice.
Sure, Trump can still argue he didn't know Eastman's advice was wrong. But he's got a problem there, too. According to the House Jan. 6 committee report and Trump's Jan. 6 indictment, the top Justice Department and White House lawyers told Trump that there was no significant ballot fraud to justify challenging the election results. Significant ballot fraud was the fabricated core of Eastman's arguments.
Evidence strongly suggests Trump also knew exactly why Eastman's legal theory was frivolous. According to the House Jan. 6 committee report, White House counsel conveyed to Trump that Vice President Mike Pence lacked the legal authority to do what Eastman wrote to Trump, to delay or reject the Jan. 6 congressional certification of President Joe Biden's election.
As William Barr, Trump's former attorney general, said last year, when Trump didn't get the legal advice he wanted from government lawyers, he took matters into his own hands. Trump "search[ed] for a lawyer who would give him the advice he wanted."
Notably, Wednesday's California State Bar Court ruling wasn't the first time a court had found that Eastman was a lawyer who "assist[ed] in the plot." In March 2022, U.S. District Judge David Carter rejected Eastman's bid to block the House Jan. 6 committee's access to key emails sent from Nov. 3, 2020, to Jan. 20, 2021. Eastman had argued attorney-client privilege, but Carter concluded:
Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.
Here's the point. It's one thing to pop off in public with demonstrable lies, disinformation and phony legal arguments. It's another to try to defend those lies in court, where facts and evidence rule.
In Eastman's case, his own words in private contradicted the manufactured facts and legal theories he spewed in public. Here are just three compelling examples from Wednesday's ruling.
First, before Jan. 6, Eastman laid out for Trump a strategy to convince Pence that he, as the Senate's presiding officer, was the "ultimate arbiter" of the validity of each state's electoral vote.
But California state bar prosecutors produced evidence suggesting that both Eastman and Trump knew that strategy was legally flawed. On Jan. 6, Eastman told Pence's lawyer Greg Jacob by email he had advised Trump that Pence could not unilaterally reject electoral votes.
Nonetheless, in his Ellipse speech moments before the Capitol siege, Trump told the crowd and (as he had already claimed on Twitter) that Pence had the authority to delay the electoral count. Indeed, after Pence rejected the fake elector slates, Trump egged on the mob via social media. "Mike Pence didn't have the courage to do what should have been done," Trump tweeted at 2:24 p.m. on Jan. 6, as his supporters engaged in hand-to-hand combat and vandalism.
Second, Eastman's claims rested on his theory of fake Trump electors — or, in his words, "contingent electors." He asserted that they were justified because of states' election law "irregularities" and resulting "fraudulent voting." Yet in January 2021, Eastman admitted in another private email to Valerie Moon, a private citizen who had written him, that these "contingent" electors weren't certified by state legislatures and therefore "had no authority."
Third, in court and in public, Eastman falsely stated that state election law irregularities and fraudulent voting had changed the result of the election. But California bar prosecutors showed convincingly that Eastman knew that he was only speculating — without real proof. On Nov. 29, 2020, he wrote to fellow MAGA lawyer Cleta Mitchell that no state legislature would reverse its certification of Biden's election without "pretty compelling evidence of fraud. It would be nice to have actually hard documented evidence of the fraud."
Such emails from Eastman are now part of the public record, ready and available for Trump's various criminal prosecutors. It is compelling evidence that the former president conspired to obstruct the election.
Good luck, Mr. Trump, trying to persuade jurors that it was "reasonable" for you to rely on your co-conspirator's incredibly terrible "legal advice." And we can be sure that special counsel Jack Smith and Fulton County, Georgia, District Attorney Fani Willis are paying attention. This likely won't be the last time we hear your lawyer's damaging California testimony presented in a courtroom.
Dennis Aftergut
Dennis Aftergut is a former federal prosecutor, the former chief assistant city attorney in San Francisco and currently counsel to Lawyers Defending American Democracy. He signed LDAD's December 2021 and States United Democracy Center's October 2021 bar disciplinary complaints against John Eastman.
Neil Goteiner
Neil Goteiner is a California trial lawyer.
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Was it wrong for Trump to attempt to steal the 2020 election by suborning Pence to table certified state votes and using fake electors?
The election was 3 1/2 years ago, and Trump has lied about the results every day since. Where is the dead horse?
The 'RIGHT' is so hungry for Trumps' horse Shit, they could gobble down and eat up a healthy portion of that there said, Dead Horse Shit.
Their Defense yet again, 'what has he been convicted of', as it always is, all while Trump desperately attempts to pushback any and ALL trials, till after the election due to if somehow, Trump is elected he could end possibly almost all of the current cases.
This could NEVER be the way our countries Founding Fathers envisioned their example of a more perfect Union.
At this point, backers, defenders, and even fair weather supporters of Trump, after all that he has done, even as they first hand witnessed, with their own two eyes, they continue to lie
to themselves
Trump supporters are still denying that he did anything wrong.
And some just deflect and post memes.
AND he has already started "hinting" that the 2024 election will also be stolen from him if he loses.
We're not the ones beating that goddamned dead horse.
And bloodbaths are around . , . yet we're taking it out of context. . .
bloodbaths all around
god damn it - maybe someday I'll have the ability again to edit my comments
Horse isn't dead, it just appears that way because of the smell.
yes
Your supposition is that Trump attempted to steal the election.
Is there any credible proof he to show that he, in fact, did that? If so, is there any credible proof that he did so with intent?
As Hillary would probably say, "at this point what difference does it make"?
Tig has a lot more patience with this sort of nonsense than I do.
I think he is more likely to answer questions with an informed and intelligent response, than others here.
than say you, and any other 'Trump hasn't been convicted yet' spouters..
Not really a supposition, more like an OBVIOUS observation.
The fact that you asked that question states that no matter what I provide you will ignore.
Explain to me how it is possible for Trump to not intend to steal the election when he organized a fake elector scheme (ran fake Trump electors through a certification process and had them sign all the legal forms), attempted to get officials such as Speaker of the Arizona House Rusty Bowers to submit his fake electors, attempted to suborn his VP Pence to table certified electoral votes from states he needed to turn in an attempt to force Congress to deal with the issue and (somehow) accept his electors over the real ones? (And this is just one of many attempts I can mention but you should already know anyway.)
How exactly would someone who claims that the election was rigged and who therefore intends to not engage in the peaceful transfer of power —as did each of his predecessors in our entire history— did not have an intent to steal the election from Biden?
You know that Trump is still claiming the election was rigged, right?
Answer applies to JustJim, Jeremy, and RightdowntheCenter too since they voted up your comment and thus apparently also believe Trump did nothing wrong.
Just provide facts to support your statements. Your opinions are wildly partisan.
How do you know who votes up comments? Are you privy to this information?
All you have to do is click on the number next to the thumbs up.
Of course, you will never accept any evidence. No surprise there.
( We all have access to who votes up comments. )
Hillary Derangement syndrome
On top of the usual PD&D
Did Eastman do anything wrong?
FFS Chesebro has admitted multiple times in court - plead guilty - to the knowingly illegal elector scheme.
Just about everyone involved has plead guilty yet the former 'president' is innocent?
Oh no, evilone, that has never been ' proven '.
Obviously the now infamous Chesebro memo was forged by antifa and the CIA...
And the FBI faked Donny Jr's text messages...
Anyone involved in 1/6, has absolutely no place in our government. Any attorney involved should be disbarred. Anyone involved in the fake electors, every single one of them. Anyone who backed the former 'president' including the Speaker of the House.
In the meantime, the system is allowing Trump to delay his trials.
but, but, but, it's a two-tiered justice system in favor of Democrats!
Funny too, the original notion of a two-tiered justice system was in reference to the rich and powerful vs. everyone else. It is thus both ironic and absurd when Trump supporters claim that Trump is the victim of a two-tiered justice system.
Disbarring Eastman means we have one less corrupt lawyer in California. Eastman has no integrity and we are well-rid of him.
I listened to an interview of him on rwnj radio a couple years back and he threatened to sue the host because of a question he didn't like.
And that is what he got from Eastman, by his (Eastman's) own admission, a shoestring theory that would not stand up to legal scrutiny.
Disbar Eastman and remove from any and all public offices those who knowingly tried to subvert the will of the people and the letter and spirit of the CotUS. That statement right there should be enough to convince any sane and logical person of Trump's unfitness for office. Crimes at such a high level should not be allowed to stand unpunished.
the first version of the Eastman memo , which Trump approved, contained a plan for Pence to simply say that no electoral votes from the 7 swing states would be counted , and then declare that Trump was the re-elected president.
If that isnt an overthrow of the government , what would be ?
Well it is at the very least a wrongdoing by Trump. Is there no one intending to vote for Trump who will honestly acknowledge even that??
Just amazing how partisanship preempts honor and integrity.
... uh, not really that difficult for maga ...
This is good news for the legal profession and the U.S> justice system and hopefully will send the message to other lawyers "Do not be idiots and disgrace the profession for money"
too late