Attorneys make final arguments in Eastman disbarment case

Attorneys for the State Bar of California made their final arguments Friday for the disbarment of former Chapman University law school dean John Eastman, faulting him for sloppy legal research and conspiring to persuade then-Vice President Mike Pence to overturn President Joe Biden’s election while Eastman’s attorneys argued the watchdog’s arguments are “Orwellian” and a “chilling” on legal advocacy.

State Bar attorney Duncan Carling argued that the evidence in the 35 days of trial from 23 witnesses “clearly and convincingly establishes that John Eastman is culpable of all charges and that his highly aggravated and serious misconduct requires his disbarment. Specifically, the evidence shows that respondent conspired with then-President Donald Trump to develop and implement a strategy to obstruct the counting of electoral votes on Jan. 6, 2021, and to illegally disrupt the peaceful transfer of power to President-elect Joseph Biden, knowing that there was no plausible evidence, and no good-faith theory or argument, to lawfully undo or delay the Jan. 6 electoral count.”

Carling noted that by mid-December 2020, courts in the seven key states where challenges were made were “uniformly rejected.” The Trump administration’s Justice and Homeland Security departments had also rebuked Trump’s claims of widespread fraud, Carling added.

The governors in the seven states, including some who were Republicans with legislative majorities, had certified Biden’s election. The Electoral College had also certified the results.

“By the time (Eastman) wrote his Dec. 23 and Jan. 3 memoranda, therefore, he knew that there could be no true dispute about who had won the election,” Carling said.

Still, Eastman pressed Pence to reject the slates of electors in the seven states or send them back to the state legislatures for continued investigation of the debunked fraud claims, Carling said. That move would violate the Electoral Count Act, which has been in place for more than a century, Carling said.

He added, “it would effectively make Pence the sole and final super-judge of the lawfulness of state elections — and, indeed, of his own election — contrary to the Framers’ intent, established principles of federalism and separation of powers, and any notion of checks and balances.”

Carling also criticized Eastman’s speech at the Ellipse before mobs of Trump supporters marched over to the Capitol with many rioting and breaking into the buildings to disrupt Congress from certifying Biden’s victory. Eastman continued making the case to Pence’s attorney even as the violence was unfolding, Carling added.

Eastman relied on and “purposely parroted the misguided opinions and narratives of demonstrably unqualified, unvetted, and unreliable ‘experts,'” Carling said.

Carling pointed out that even Eastman’s own expert John Yoo acknowledged that Biden won “fair and square” in his testimony. Carling added that Yoo himself capitulated when then-U.S. Attorney General Bill Barr declared there was no evidence of widespread fraud in the election.

Eastman’s “misconduct, accompanied by his blatant indifference, which persists to date, is so outrageous and exceptional, there is no case law directly on point,” Carling said, adding it is worse even than the conduct of Donald Segretti, known for his dirty tricks in the Watergate scandal.

Segretti at least was only 30 at the time and was not acting as an attorney and ultimately recognized how wrong he was and “expressed regret, and cooperated with the investigating agencies,” Carling said.

Eastman’s “misconduct is much more egregious and has a direct correlation to the Jan. 6 riot, which caused serious physical harm,” Carling said.

Eastman’s attorney Randall Miller, however, argued at a State Bar Court courtroom in downtown Los Angeles that his client should not be found culpability and should face no discipline or sanctions.

Miller argued that as the courts were not providing any sort of relief for Eastman’s client he turned to “other potential remedies not foreclosed by clearly established precedent.”

Miller added that it was still an “open question” whether the vice president has the authority to delay or halt the certification of the electors. He said Eastman engaged in a “good-faith interpretation of the historical record” that was “not foreclosed by precedent.”

He added that “every lawyer is ethically and by oath obligated to pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. And with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. That principle, the law for 225 years, teeters under the weight of this Bar proceeding.”

Miller argued that his client has First Amendment protection when he alleged fraud in the election. Miller also discounted the public claims from Barr and others regarding the integrity of the election.

“The premise of the State Bar’s charges against Dr. Eastman, which rests on these and other similar statements, has an Orwellian cast to it: the government has spoken, and if you disagree, then you must be lying,” Miller said. “Two plus two equals five, after all, and if the government says so, you must not only repeat the lie, but you must come to believe it as well.

“This is authoritarianism, not republicanism,” Miller continued. “And Dr. Eastman, in fulfilling his duties to a client, happens to have been thrust to the forefront of the push-back against such authoritarianism, at great expense both in time and treasure to himself. If Dr. Eastman and his client were correct that the 2020 election was stolen — a view they firmly held at the time and continue to hold — then the threat to our system of government is extraordinarily high.”

The hearing’s judicial officer Yvette D. Roland will issue a ruling within the next 90 days.

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