A Closer Look at the Eastman State Bar Decision
Taking a few minutes away from work things to read through the Eastman decision. As I’m sure many of you know, Eastman was my law school con law professor. I knew him pretty well because I was also running in the Federalist Society circles back then (it was much less hackish in the mid-aughts, but looking back, the stress lines were definitely there) and he was the Fed Soc advising professor.
Part of me is saddened by this whole thing. Eastman was always pretty right wing, but he was a decent guy. We disagreed mostly on social issues - he is/was very much a social conservative; I am staunchly libertarian. Some day, someone is going to write a book about how so many otherwise decent people fell into the gravity well of Trump’s personality and gave up everything for him. But at the same time, I believe if you fuck around, you’re going to find out, and that’s what happened here. So I have no sympathy when it comes to the discipline part of this.
Anyway… on to the decision. There’s a lot (and I mean A LOT) to unpack. The first thing that jumped out to me was this bit, and really seems like the heart of all of this:
Main thing, and extremely important, is that the legal/constitutional trigger for legislative action after the fact has to be a failure to conduct the election on Nov 3 in accord with the statutory requirements. Article II, in my view, just doesn’t allow the Legislature to reclaim the power to choose electors after the fact if the election has been conducted in accord with the statutes.
Second key issue is going to be political. I can’t imagine a legislature, particularly one with enough never-Trump republicans to make a difference, taking this step—which would be viewed as rather extraordinary—absent pretty compelling evidence of fraud. The statistical analyses that have been done might get you there, but it would be nice to have actually hard documented evidence of the fraud in the areas to which the analyses pointed.
That’s something that Eastman said to a Cleta Mitchell. They knew they there was no evidence and that trying to get the state legislatures to disregard the will of the voters and appoint their own electors was facially unconstitutional. They knew once the electoral votes were certified, the game was over.
Also, this does not bode well for the defendants in the Georgia case:
Eastman’s trial constitutional expert, Dr. John Yoo, agreed with the characterization that the Trump Campaign’s dispute over the 2020 presidential electors, specifically, the appointment of Trump electors, was “a made-up dispute, rather than a real one” (R.T. Vol. XVIII, p. 62), reasoning that each contested state had only one certified set of electors, “[n]o branch of any state government challenged its electors in 2020,” and “[n]o state or federal court and no legislature or executive had found fraud”; as such, there was no “factual predicate” to trigger Vice President Pence’s dispute resolution role with regard to the elector slates
When your own experts testify that your arguments are mostly bullshit, that is, to use very technical legal jargon: a really fucking bad thing.
And as I was saying above about people throwing their careers away for Trump, there’s this, which the court did not find particularly convincing:
Acknowledging that these were positions Eastman held for over 20 years, positions which were contrary to the two-page memo scenario which stated Vice President Pence had unilateral authority to count and resolve disputed votes, Eastman claimed that his change of position between October 2020 and December 2020 was due to a significant amount of additional research.
Eastman isn’t the type to change his mind on “big” issues, so I find it hard to believe there actually was any research that changed his mind. And the decision doesn’t give any indication what if, any research there was.
Once you get from the facts to the law, it’s pretty straightforward, and I’m not sure there’s much that needs to be said there. The evidence is pretty straight forward that Eastman, in his role as an attorney, made several public false statement about the facts and the law and he also filed law suits with no basis. At the end of the day, the court got it right:
While attorneys have a duty to advocate zealously for their clients, they must do so within the bounds of ethical and legal constraints. Eastman’s actions transgressed those ethical limits by advocating, participating in and pursuing a strategy to challenge the results of the 2020 presidential election that lacked evidentiary or legal support. Vigorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law.