The Legal Battle Over John Eastman’s Disbarment
The California State Bar has taken a significant step in its ongoing effort to disbar former law professor John Eastman. This move comes as part of the bar’s broader initiative to address the legal and ethical implications of Eastman’s actions during the 2020 presidential election. The bar is now asking the California Supreme Court to affirm a recommendation that Eastman be stripped of his law license due to his role in efforts to overturn the election results in favor of former President Donald Trump.
On Monday, bar attorneys filed a 34-page petition with the California Supreme Court, seeking a ruling on specific issues related to the standard of review. The petition also requests that the justices agree that Eastman should lose his law license over his pro-Trump legal work. According to the petition, Eastman made numerous knowing misrepresentations, falsely alleging that the 2020 election had been stolen through election fraud and illegalities. After losing arguments in courts, with election officials, and with state legislatures, Eastman developed a theory that the Vice President could reject or delay the count of legally valid electors from seven swing states.
In June, a three-judge panel on the California State Bar Court’s Review Department agreed with a March 2024 decision recommending Eastman’s disbarment. However, the appeals court introduced a new framework for reviewing Eastman’s statements and legal work, identifying “strict scrutiny” as the applicable standard. This approach is significant because it determines how courts evaluate government actions and can have far-reaching implications.
Under long-standing constitutional analysis, the way a court approaches an inquiry into government behavior often dictates the outcome. In U.S. Supreme Court terminology, there are three major frameworks: rational basis review, intermediate scrutiny, and strict scrutiny. Generally, rational basis review favors the government, while strict scrutiny often leads to a loss for the government. Intermediate scrutiny, however, remains unpredictable.
In Eastman’s case, the bar’s counsel is considered part of the court system, which was created by the legislature. As a result, the counsel’s behavior is viewed as governmental action when analyzing the punishment of Eastman’s speech. The reviewing court determined that all of Eastman’s relevant statements were core political speech triggering strict scrutiny. However, the state bar argues this is incorrect, emphasizing that when lawyers speak in their professional capacity, especially in client advocacy, their statements may be subject to more deferential intermediate scrutiny.
Notably, the appellate court rejected First Amendment defenses mounted by Eastman, ultimately finding his statements to be false, misleading, and in service of unlawful activity. Despite this, the state bar maintains that getting the standard of review correct is crucial, as they want Eastman’s case to serve as future citable authority. They believe the identification of strict scrutiny as the standard for Eastman’s pro-Trump efforts contradicts extensive jurisprudence.
The state bar is also requesting the high court to clarify whether Eastman’s misconduct rose to the level of “significant harm in aggravation.” Both the trial court and appellate court declined to find that Eastman’s behavior caused harm beyond the public, the courts, and the legal profession. However, the disciplinary counsel argued that Eastman caused additional harm to elections administrators by sowing doubt about the electoral process.
Eastman was a key architect of Trump’s efforts to overturn the 2020 election, famously authoring two of many so-called “coup memos.” These memos outlined potential scenarios under which Joe Biden’s electoral college victory could be set aside. The state bar’s filing risks little in Eastman’s case, as the reviewing court still recommended disbarment, but seeks to establish a precedent for harsher discipline of attorneys in the future.
The petition concludes that Eastman’s actions constituted unprecedented misconduct of the most egregious nature and that the harm he caused should be recognized and included in the disciplinary analysis to serve as specific and general deterrence for Eastman and other lawyers.
