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John Eastman. | Photo courtesy of Wikimedia Commons (CC BY 3.0)
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Former Chapman University law school dean John Eastman used “baseless legal theories” to prevent the certification of President Joe Biden’s election, a state bar attorney told a hearing officer considering Eastman’s proposed disbarment Tuesday, while Eastman’s lawyer said his client was arguing disputed legal scholarship and was protected by free-speech rights.
“I will ask the court to consider his entire course of conduct and see it for what it was … to obstruct the electoral count on Jan. 6 and stop (then-Vice President) Mike Pence from certifying the election of President Biden and prevent him from taking office,” state bar prosecutor Duncan Campbell Carling said.
“The evidence will show that Dr. Eastman’s legal theory that Pence could reject the votes in certain states or delay the electoral count independently was baseless,” Carling said.
“Dr. Eastman did worse than advance frivolous legal theories,” Carling said. The prosecutor accused Eastman of a “last-ditch effort” combined with a “long course of increasingly desperate attempts to overturn the election” that included making “false claims about election fraud to legislatures, to courts, to the general public.”
Eastman also pressed state legislatures to authorize an alternate slate of electors favored by former President Donald Trump, Carling said.
Eastman “continued to do these things” even though investigators rejected the claims of widespread voter fraud and “after they had a full and fair opportunity to present these claims in state and federal courts, which they either lost or withdrew,” Carling said.
“And even then after it was clear that bipartisan majorities in both houses of Congress would refuse to” accept the alternate slates of electors, Carling said.
Carling also pointed to an email exchange between Eastman and Pence’s attorney, Greg Jacob, in which Eastman “privately confessed to Jacob that his theory had no chance of persuading a court. He was fully aware in real time that his plan was damaging the nation even after violence erupted in the Capitol, putting Vice President Pence and his family and members of Congress in danger. Dr. Eastman continued to press his illegal scheme and suggested that Vice President Pence was responsible for his predicament,” he said.
Jacob told Eastman that he was being “gravely irresponsible” to “entice the president with an academic theory that had no legal viability and you would well know we would lose in front of any judge who heard the case,” Carling said, quoting the email exchange.
Jacob said Eastman would have opposed Democrats if the shoe was on the other foot, according to Carling.
Eastman’s attorney, Randall Miller, said he was unable “to find anything quite like this case and the issues the court is prepared to deal with.”
Miller argued the case was about whether Eastman’s legal theories were “tenable,” whether he was protected by free speech rights federally and in California and whether he had the right to petition for redress.
Eastman was “not there to steal the election or invent ways to make President Trump the winner,” Miller said. “In fact, if he lost, his hope was that the election was properly and legally conducted.”
Eastman’s goal was to “delay” the certification of the votes so the states where the votes were most closely contested could continue to investigate the claims of fraud, Miller said. Miller pointed to Pence’s remarks citing concerns about “voting irregularity.”
Miller said Jacob also acknowledged in early December that there was debate about Pence’s authority to halt or delay the certification of the vote.
“It is very telling because Mr. Jacob in that memo goes on to say five times … that it is not clear what constitutional authority the vice president has and it has been subjected to scholarly debate for years and scholars disagree with that power,” Miller said. “Some argue that the sole responsibility of the vice president is to count the electoral votes. That’s the legal issue that is at play here.”
Miller said that “all roads lead through Vice President Pence.”
The conversation Eastman and Jacob had were “two smart people talking about the scope of constitutionality … a conversation in good faith that lawyers do,” Miller said.
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