AuthorEpps, Garrett

God help me, I thought of John Eastman as a friend.

Today he stands accused in the court of public opinion of being the chief legal architect of Donald Trump's push to overturn the 2020 election and remain in office. But before that he was a law professor, an activist, and a man with a lot of friends. I've been one of them.

By "friend" I mean the friendship one law professor develops with another across ideological lines. Eastman is a devoted member of the far-right caucus of the Federalist Society. I am a devoted progressive and longtime member of the American Constitution Society. We have never agreed on much.

But the ethos of the legal academy bids ideological adversaries to reach across philosophical lines. That supposedly furthers the values we claim to believe in--rational inquiry, open-mindedness, a search for truth. Eastman's career as an academic was highly political and resolutely far right, but it was also distinguished. As professor and eventually dean of Chapman University School of Law, he was respected by people on both sides of the philosophical divide. Most important to me, of all the Federalists whom I have (for my sins) debated over three decades, John was the only one who ever publicly said, "You know, you raise an interesting point--I am going to have to think about that."

Today, the strange career of John Eastman raises questions about whether any of those values--civil discourse, careful analysis, mutual respect, the entire small-1 liberal intellectual project--have any substance at all, or are just fairy tales that disguise the grim reality that law, and everything else in American politics, is nothing more noble than a knife fight in the dark.

It's hard to overstate how much trouble John Eastman is in. On January 6, 2021, he spoke to the "Save America" rally on the Washington Ellipse that led to the bloody attack on the Capitol by a mob of Donald Trump's supporters. Since then, headline after headline has indicated actions taken or threatened against him: Only a few days after he spoke at the January 6 rally, three members of Chapman's board demanded that he be disciplined. Soon after, the school announced that Eastman would retire and instead concentrate on his visiting professorship in "Conservative Thought and Policy" at the University of Colorado. The Colorado chancellor, meanwhile, said in a statement on January 7 that "[Eastman's] continued advocacy of conspiracy theories is repugnant, and he will bear the shame for his role in undermining confidence in the rule of law." Shortly after that, Colorado canceled Eastman's classes for lack of enrollment and stripped him of his other duties.

On December 9, 2021, in a deposition taken by the staff of the House Select Committee to Investigate the January 6th Attack on the United States Capitol, Eastman invoked the Fifth Amendment roughly 100 times. He invoked the Fifth again in an appearance in front of a Georgia grand jury investigating the Trump team's efforts to pressure Georgia authorities into reversing the result in that state and awarding its electors to Trump.

On March 28, 2022, Judge David O. Carter of the Central District of California wrote in a published opinion that "it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021"--that is, the official certification of the electoral vote totals that made Joe Biden president. If proved, Carter concluded, Eastman's actions violated 18 U.S.C. [section] 371, which forbids conspiring to "defraud the Unit ed States," by "dishonestly" conspiring to file false electoral votes for Trump from states carried by Biden. That statute provides a maximum of five years in prison.

Then, in December 2022, the January 6th Committee, in its final report, issued a "criminal referral" against Eastman by name, proposing a federal indictment for violation of 18 U.S.C. [section] 1512(c). That statute forbids "corruptly" obstructing, influencing, or impeding "any official proceeding." Although the committee suggests criminal referrals against Trump, or "President Trump and [unnamed] others," six times, in only one of these referrals does it name another specific person as a potential defendant: John Eastman.

In January of this year, the California State Bar Trial Counsel announced public proceedings to strip Eastman of his legal credentials. The bar's complaint alleged six counts of "Moral Turpitude--Misrepresentation" in Eastman's public statements alleging that the 2020 election was stolen from Trump; one count of "Seeking to Mislead a Court" because, as a lawyer for the Trump campaign, he signed a motion to join the Texas lawsuit asking the Supreme Court to overturn the election; and one count of "Failure to Support the Constitution and Laws of the United States," because he allegedly tried to pressure then Vice President Mike Pence into rejecting the electors from states Biden won.

Neither the committee's "referral" nor Carter's ruling constitutes even a formal charge of criminal wrongdoing. The case in Carter's court is a civil, not a criminal, proceeding over a subpoena for Eastman's emails, and a congressional "referral" is nothing more than a suggestion to the Department of Justice. The California Bar has not taken action against Eastman, and might never do so. Criminal charges might be forthcoming--either from the January 6 special counsel Jack Smith or from a state grand jury in Atlanta investigating Trump-campaign pressure on election officials to reverse Biden's win in Georgia--or, equally likely, they might not.

But criminal jeopardy aside, I've become fascinated with what the January 6th Committee's final report says Eastman did before, during, and after January 6--from the point of view not of a prosecutor, but of a legal scholar. According to the report, after the 2020 election Eastman took up a role as Trump's consigliere on all matters having to do with "vote fraud" and the Electoral College. He advised Trump that alleged violations of state law in swing states had favored Biden and thus rendered the elections illegitimate, and that the legislatures of those states could respond by "electing" false slates of electors for Trump. He also advised Trump that Pence, who by the terms of the Constitution presides over the electoral vote certification, had the power to reject votes from states in which "unlawful" elections had been held, delay the certification of Biden's win, and send the issue back to state legislatures, which might decide to pick the electors themselves.

One of the committee's most important charges is that the latter theory is so thin that Eastman didn't even believe it himself. How did someone with such a firm professional identity, and such credibility within his chosen legal world, risk it all by making a mockery of the Constitution he claimed to revere?

I reached out to Eastman for an interview, and to my surprise, he accepted gladly. When we spoke on the phone, he was exactly as I remembered--charming, voluble, seemingly candid, eager to engage in debates over legal theory. There was no hint that I was talking to a man brought to bay by some very powerful forces and facing the full shaming power of the Twitterverse; indeed, the conversation was more like a skull session one might have with a colleague in the faculty lounge. In no way did he admit, or seem to feel, that he had done anything wrong, or, except in the most general way, fire back against his accusers.

As a class, law professors are among society's mildest, most rule-oriented members. We cite, analyze, and apply the law; we criticize it; we suggest improvements. We imagine new situations and suggest new doctrines to respond to them. We draft proposed statutes and regulations. We testify before legislative hearings.

We advocate for our ideas. We push the constitutional envelope and sometimes suggest unprecedented actions. And sometimes we advise private clients, government figures, and other lawyers. We pretty much don't, as part of a normal career, conspire to violate the law; for constitutional scholars like John Eastman and me, it's very unusual to be accused of conspiring to overthrow the government.

I can't help seeing Eastman's story as a cautionary tale about the peril that awaits all of us when we venture out of the daily world of rules and norms and into the shadow world created by a figure like Trump, whose persistent message is that he is above the law--indeed, that the very idea of "law" is irrelevant to someone like him--and that if we follow him, we can be above the law as well. I also think Eastman's story tells us something about a serious wrong turn American conservatism took a quarter century ago, and about the dangerous path the Republican Party seeks to guide the nation on.

John Eastman grew up in Nebraska and finished high school in Texas. He graduated from the University of Dallas in 1982 with a bachelor's degree in politics and economics; then, a decade later, he gained a PhD from Claremont Graduate University, part of the venerable Claremont Colleges consortium in the suburbs of Los Angeles, with a dissertation on "Public Education at the American Founding." Claremont, then and now, was a center of a school of highly intellectual hard-right conservatism that foregrounded religious history and values as the supposed core of American law and government. Progress on Eastman's degree was slowed because he took time off to serve as campaign chair for his dissertation adviser, William B. Allen, in a run for the U.S. Senate in 1986. Allen got 0.65 percent of the primary total--fewer Republican votes than the former Black Panther Eldridge Cleaver--but Ronald Reagan's administration at that time was on the prowl for aggressive Black conservatives, and Allen fit the bill. In 1987, Reagan named Allen a member, and then chair, of the U.S. Commission on Civil Rights. Eastman became the...

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