Eastman’s pre-2020 career includes being chairman of the board of the National Organization for Marriage, a position from which he e.g. expressed fervent support for Uganda’s anti-gay laws (life in prison for repeat offenders) and promoted most of the anti-gay rhetoric with which the 2010s made everyone familiar, including denouncing the LGBT equality movement as “fascist” and as promoting pedophilia – Eastman actually managed to gain himself significant prominence in wingnut circles also prior to 2020. He also attacked the 2015 marriage equality ruling as “illegitimate” and argued that a simple majority of states should be allowed to override Supreme Court decisions that Eastman thinks are “egregiously wrong”. There is a decent pre-2020 portrait of his efforts here.
The national public attention Eastman gained prior to the 2020 election was perhaps mostly the result of his August 2020 op-ed in which he falsely claimed that Kamala Harris was not a “natural-born citizen” (i.e. white Republican) and therefore ineligible to be vice president. Eastman’s attempted gambit was the irrelevant claim that neither of Harris’s parents was a permanent resident at the time of her birth. (It is notable that Eastman had previously dismissed admittedly silly concerns about 2016 presidential candidate Ted Cruz – who was born in Canada – as “silly”). The op-ed was instrumental in bringing Eastman to the attention of Jenna Ellis and the Trump camp, however.
Efforts to overturn the 2020 election
Eastman was a pivotal figure in the efforts by the Trump administration to overturn the 2020 election, starting with him being named to represent Trump in the December 2020 motion to intervene in Texas v. Pennsylvania, a laughable case filed by Ken Paxton on behalf of the state of Texas to annul the Pennsylvania election results. The case was of course quickly dismissed by the Supreme Court, but Eastman still got the time to write a brief full of bizarre claims, including the assertion that “[i]t is not necessary for [Trump] to prove that fraud occurred” but sufficient to show that elections “materially deviated” from the intent of state lawmakers.
Eastman was instrumental in shaping and disseminating the myth about “the vice president’s power to hold up the certification” of the presidential election, and he circulated a number of memos to that effect. On January 5, 2021, he completely falsely told Mike Pence that Pence had the constitutional authority to change the electoral vote to block the certification of the election, and he designed the six-point plan of action for Pence to throw out the electors from swing states Biden won that was sent to Mike Lee. He also, together with e.g. Rudy Giuliani and Trump himself, arranged online meetings with numerous legislators in a concentrated effort to convince them and instruct them on how to decertify their state’s election results. Eastman later tried to backpedal a bit from his memos and claims, but he also asserted that Pence didn’t follow through with blocking the election because Pence was in a conspiracy with the deep state to undermine Trump. Oh, and Eastman was demonstrably aware that his efforts were unlawful.
On January 6, 2021, Eastman gave a speech at the “Save America” rally prior to the insurrection, where he asserted, without a shred of evidence (or reason), that balloting machines contained “secret folders” that altered voting results. After the January 6 events, Eastman tried to argue that the Trump rally did not incite the siege of the Capitol, going instead full conspiracy theory with the desperately ridiculous claim that “a paramilitary group as well as antifa groups” planned and organized the event; in support for his delusions, he cited a Washington Post article (this one) that did not at all support his claim or even mention antifa. He also, in direct conflict with his other story, blamed Pence’s “inaction” for the attacks. In his subsequent meetings with the House Select Committee on the attacks, Eastman – somewhat understandably – invoked the Fifth Amendment.
But even after the January 6 riots, he continued to implore Vice President Pence and his counsel to violate the Electoral Count Act by delaying certification of the election. Indeed, by late 2021, Eastman was still trying to push state legislatures to “de-certify” their election results.
On March 28, 2022, federal judge David O. Carter found that Eastman, along with Trump, was more likely than not to have “dishonestly conspired to obstruct the joint session of Congress on Jan. 6, 2021”, and the US House Select Committee on the January 6 Attack subsequently charged him with obstruction of an official proceeding and conspiracy to defraud the US, along with Trump. Eastman is presumably also a co-conspirator in the 2023 indictment of Trump for conspiring to defraud the US, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding, and he was, in August 2023, among the indictees in the prosecution related to the2020 Georgia election.
True to form, Trump and his campaign refused to pay Eastman for his services or reimburse his expenses. Nor did Trump, after Eastman meekly asked, in the aftermath of January 6, to be placed on the list of those to be given a presidential pardon before Trump’s term in office ended, grant him a pardon.
Diagnosis: It would be easy to categorize Eastman as merely a fervent fundie trying desperately to reconstruct the the law to serve his ideology and interests, but he does seem genuinely confused about basic questions of how reality hangs together. But despite being a dumb conspiracy theorist, Eastman has also managed to do more than almost anyone else to undermine democracy, the Constitution, and the rule of law in the US.
06/16/2026. This, by way of providing an alternative point of view (names removed to protect the ideologically incorrect):
ReplyDeleteOne of my episodes last week on the [redacted] covered a topic that other podcasts are unfortunately neglecting, but which we'd better start talking about pretty darn fast.
The Bolshevik Revolution ushered in a transformation of the Russian legal system along with it: in Lenin's Russia a judge didn't need to master what was in all those dusty old law books. It was sufficient that he held a proper "revolutionary consciousness," which he could apply to each case separately.
Well, the case of John Eastman shows that we may not be as far from that outcome in our own society as we think.
But first, a key historical episode: in 1770, most Boston lawyers refused to represent Captain Thomas Preston and his soldiers, who were charged with killing five colonists. John Adams, a patriot and lawyer, took the case, believing that a fair trial required competent counsel.
Through methodical presentation of evidence, Adams secured acquittals for Preston and six soldiers, with two convicted only of manslaughter. He later called this "one of the best Pieces of Service I ever rendered my Country." He went on to help draft the Declaration of Independence, serve as vice president, and become the second U.S. President. Today, the American Bar Association still mandates that lawyers represent clients with "commitment and dedication" and "zeal in advocacy."
John Eastman has received the opposite treatment for providing legal advice to an unpopular client, namely Donald Trump. A prominent conservative lawyer, former Chapman University law professor and dean, clerk to Justice Clarence Thomas, and appellate litigator, Eastman advised Trump on the mechanics of electoral vote counting under the 12th Amendment and the Electoral Count Act of 1887.
He suggested Vice President Mike Pence could defer counting disputed electoral votes from swing states pending further review -- a theory that had parallels in prior Democratic objections in 2002, 2005, and 2017, which faced no similar backlash. Pence ultimately proceeded with certification on January 6, 2021, rendering the issue moot.
Nevertheless, Eastman was forced to retire from Chapman, lost a visiting professorship, was indicted in Georgia alongside Trump, subpoenaed by Congress, and disbarred in California following a record 35-day hearing before a Democrat-donor judge. The process cost him over $750,000 personally, with total defense costs potentially reaching $3-3.5 million.
The California State Bar’s decision found grounds for disbarment despite Eastman not having engaged in fraud, lying, or moral turpitude, the standard reasons for that punishment. Eastman's advice, whether you agreed with it or not, clearly fell within the good-faith, zealous advocacy we are supposed to expect from lawyers, in an area of law marked by textual ambiguity and limited precedent.
As important as the Eastman case is in itself, and there's plenty more to say about it, it is even more important in terms of what it portends for the future.
As the law schools and thus the legal profession drift farther to the left (and the poll numbers don't lie on this), we come closer and closer to a system like the Bolshevik one, in which judges fish around for legal arguments to justify outcomes they've decided in advance.
This is why it was so revealing to hear "progressives" say, upon the death of Ruth Bader Ginsburg, that what made her great was that "she fought for what she believed in." Being a Supreme Court justice has nothing to do with fighting for what you believe in.
My guest for this episode was [redacted], a legal scholar I've actually sparred with in the past (the two of us had a civil debate -- remember those? -- in print last year), but with whom I am in firm agreement on this critically important issue.