He’s the Trump lawyer behind the fake electors scheme and author of the so-called “coup memo” (details here).
That got him fired from a teaching job at a Colorado law school; and now the state bar of California, where he’s licensed and has a practice, is seeking to disbar him (read a summary of the charges here).
A disciplinary hearing before the California State Bar Court began on Tuesday, June 20, 2023, and is being livestreamed on Zoom via a link here. (Wait for the email sign-in box to appear; this may take a minute.)
In the portion I listened to, Eastman’s defense counsel, Randy Miller, argued a theory of “honest advocacy” based on “colorable” legal theories, and contended Eastman’s advocacy also was protected by free speech and the right to petition for redress of grievances.
I have a couple of problems with this.
First, Eastman’s efforts to block Biden electoral votes occurred after states had certified their elections and courts had rejected challenges to the official results. The time for arguments was before that. Eastman advocated rejecting those legal processes. If that’s “honest advocacy,” and his advice to Trump (i.e., the “coup memo”) is protected by that principle, then there’s no such thing as a frivolous legal argument or legal malpractice.
Second, Eastman didn’t just give legal advice. He also made public speeches, including at the Jan. 6 rally, and that can’t be called legal argument. It was political advocacy. Eastman always blurred the lines between the two, until they became one. And his arguments were not informed by the law, but by a desired political outcome.
The theory Eastman argued — that state legislatures have “plenary power” to ignore the voters and appoint electors — exists only because people like him argue it. It’s so far out there, and so unlikely to be accepted by courts, that it’s “fringe” not “colorable.” Under the professional rules, lawyers aren’t allowed to waste courts’ time with fringy arguments, and have a duty to give clients competent advice. The line between “colorable” and “fringe” can be blurry, but it isn’t in this case.
A lawyer typically would be subject to discipline for incompetent advice that harmed a client; in this case, Eastman gave Trump questionable advice that furthered Trump’s interests but harmed the entire country. Lawyer discipline usually doesn’t have to deal with this, and it’ll be interesting to see how the California bar handles it.
Third, Trump didn’t have a legitimate grievance, nor was he petitioning Congress; he was trying to obstruct it from certifying the election. Eastman’s advice to Trump was in furtherance of those obstruction efforts.
As for how I feel about Eastman, he’s entitled to due process, and to be treated impartially under the California professional practice rules. I feel really strongly about this. It’s for the California State Bar Court to decide whether he violated those rules, and if he did, what sanctions are called for.
Eastman may yet face criminal charges in Georgia and possibly federal courts. A conviction would result in automatic disbarment, but the California bar isn’t waiting for a resolution of his case in the criminal courts. The disciplinary hearing is, of course, an independent determination. State bar counsel will argue Eastman’s actions were beneath what is expected of lawyers. I agree.
At a gut level, I want to see all the lawyers who participated in Trump’s efforts to overthrow the election suffer consequences. This was really serious. It was an attack on our freedom. Eastman hatched a scheme to thwart the will of the voters; he also egged on Trump, and helped incite the Jan. 6 crowd. Lawyers, as officers of the courts, with a duty to uphold our laws, shouldn’t be free to do those things without consequences for their professional status.