Donald Trump’s former attorney and constitutional legal scholar, John Eastman, filed an opening brief with the California State Bar Court last week appealing his disbarment for assisting Donald Trump with legal representation regarding the 2020 election illegalities. California Disciplinary Judge Yvette Roland formed her opinion by determining that Eastman’s legal opinions were wrong and that there was no election wrongdoing.
The brief said, “[T]his prosecution should never have taken place. It is, rather, a manifestation of George Orwell’s dystopic depiction of authoritarianism — statements by the Government, no matter how demonstrably false or suspect, must be accepted as truth.”
Eastman, whose resume is over 100 pages long, said, “[I]t must be emphasized that the Hearing Department is the first court in the nation’s history to consider the constitutional question of the Vice President’s authority to resolve disputes over electoral votes. This is a novel and unresolved issue, directly derived from our nation’s highest law, and arguably a non-justiciable political question not subject to judicial review. Nevertheless, the Hearing Department of the State Bar Court of California found itself qualified to authoritatively resolve this issue.”
Roland, who donated to Democrats while serving on the bench, is referred to as the “Hearing Department” in Eastman’s brief.
The brief went on, “[T]he Hearing Department did not resolve ‘uncertain’ claims of law in Dr. Eastman’s favor, but simply drew her own legal conclusions about contested and open questions of constitutional law that OCTC itself has described as ‘novel’ questions.”
The brief stated that “the 2020 presidential election [was] one of the most hotly debated, disputed, and controversial elections in our nation’s history — and in which lawyers on all sides played prominent roles before, during, and after,” yet “the Bar selectively plucks Dr. Eastman from the election-litigation scrum to prosecute him for his research, legal advice, role as counsel of record in consequential court cases, and public statements — all on behalf of clients who sought his active and zealous advocacy and legal and constitutional acumen.” In the legal realm, “contested issues of fact and law, particularly in the intensely partisan area of elections, are commonplace.”
Eastman accused Roland of ignoring his legal arguments on the contentious election issues, but instead “myopically focusing instead on the counter evidence (including, frequently, demonstrably false hearsay evidence)” from the bar’s attorneys, known as the Office of Chief Trial Counsel (OCTC). This deprived Eastman of due process, he said.
“The record is replete with arbitrary and selective admission and exclusion of evidence, consistently, if not without exception, favoring OCTC and severely prejudicing Dr. Eastman’s defense,” the brief said.
The brief warned of the ramifications of letting the disbarment stand, “Every attorney, regardless of side, politics, or personal or legal beliefs, should shudder at the notion that they, too, or any of their brethren, can be the subject of the same convenient, trendy, and selective interrogation — undermining the essential role of zealous and impassioned advocacy they swore to uphold and honor.”
Eastman pointed out, “None of the courts in which Dr. Eastman appeared as counsel imposed sanctions, issued an order to show cause, or even suggested his filings, legal positions, and advocacy were anything other than proper, tenable, and consistent with lawful representation of his clients’ interests.”
He said the OCTC admitted that the role of the vice president and state legislatures regarding disputed elections and alternate electoral slates involved “novel” areas of the law. Eastman said the bar discipline was also imposed due to him exercising his First Amendment right to free speech by discussing the election problems publicly “in official state proceedings, to legislator-clients, in public fora, in media (television, radio, and podcasts) and in published articles.”
The brief said the hearing neglected to consider Eastman’s “duty of vigorous advocacy,” which “required Dr. Eastman, to identify, assess, and present all tenable legal options available to President Trump and the Trump Campaign in order to advance their interests relative to Dr. Eastman’s engagement.”
Eastman said he was denied an opportunity to present many witnesses in his defense, due to “the Hearing Department’s refusal to allow Dr. Eastman to call replacement witnesses after witnesses originally designated subsequently declined to testify because they were being implicated in other law enforcement investigations or prohibited by other tribunals from public comment or participation.”
Roland applied the wrong standard to the First Amendment, Eastman argued.
She “relied on irrelevant advertising/soliciting cases that applied intermediate scrutiny, as opposed to the strict scrutiny standard applicable to restrictions on the core political speech at issue here,” according to the brief.
One of the ethical rules used against Eastman (pictured above) is used to target conservative attorneys, prohibiting criticism of judges. He responded, “[N]one of the public statements for which Dr. Eastman has been charged involved impugning the character of judges or interference with the administration of justice, his statements are entitled to the full and robust protections of the First Amendment.” Roland held that Eastman had made “false statements” about judges, but Eastman pointed out that even the landmark Supreme Court case she relied on, U.S. v. Alvarez, found that speech the court found was “an intended, undoubted lie” … was nevertheless held to be protected speech.”
Eastman said regarding Roland’s donations to Democrats, “All of those donations were in support of President Biden, the political opponent of Dr. Eastman’s client, former President Trump, or the Democratic Congressional Campaign Committee.” Eastman cited her contributions to a SuperPAC that fought against election integrity. He noted that the “talking points” on the website were very similar to arguments the OCTC made during the hearing.
Additionally, the bar prosecutors were all Democrats, and one had donated to President Joe Biden. From what Eastman’s team could discern, almost every one of the 13 bar trustees was a Democrat, and none were Republicans.
Eastman quoted the bar disciplinary rules, observing that “the entire structure, appointment process, and staffing of OCTC and the Bar Court are far from ‘impartial and disinterested,’ as required by Due Process. It simply ‘preserves’ neither ‘the appearance’ nor the ‘reality of fairness.’”
Eastman challenged the unfair treatment he and his witnesses received. “Dr. Eastman and his witnesses were routinely badgered and harassed by the Hearing Department, subjected to leading questions, and their testimony was rejected and questions repeated with growing aggression when it did not align with the Hearing Department’s preconceptions,” the brief said.
He said Roland ignored dissenting opinions, and ignored case law which established that “a denial of review of a denial of a motion for preliminary injunction is not an ultimate ruling on the merits in a case.”
Eastman said her “approach to witness questioning was far from neutral. It repeatedly framed inquiries in a manner that distorted testimony, pressured witnesses into speculative answers, and disregarded clear distinctions and legal clarifications.” Similarly, the brief said that she “consistently and pervasively showed arbitrary selectivity in excluding or admitting evidence in a manner that, without legal justification, consistently favored OCTC while limiting Dr. Eastman’s ability to present a full defense. … This bias is evident in the court’s permissive stance toward hearsay and speculative testimony introduced against Dr. Eastman, while it systematically excluded similar or more probative evidence from the defense.”
The brief added that witnesses were treated differently depending on whether they were Republicans or Democrats.
“The consistent favoritism paid to Democrats and disapprobation paid to Republicans resulted in vastly disparate treatment of witnesses from either party, it said.”
“The Hearing Department seemed quick to jump to Democrats’ defense every time any insinuation was made that there might be bad actors or untoward conduct within their ranks,” the brief added.
Roland refused to allow into evidence amicus briefs and motions to intervene filed by 28 state attorneys general and legislators in Texas v. Pennsylvania, despite one of the main charges against Eastman being related to his role in filing a motion to intervene in the case representing Trump. He explained, “This decision ignored the fact that the intervention by Attorneys General demonstrated that many other attorneys held similar views and did, in effect, the exact same thing for which Eastman was charged — a matter that speaks directly to its legal tenability.”
Eastman pointed out the hypocrisy. “[B}]riefs on the other side of the very same case were judicially noticed when OCTC sought to admit them,” the brief said.
The brief also said the most severe bias by the judge was her refusal to let him offer any evidence from after January 2021.
“The blatantly disparate treatment in the admission of post-January, 2021 evidence was perhaps the most egregious example of bias displayed by the Hearing Department,” Eastman said. “While the Hearing Department prohibited Dr. Eastman from presenting any evidence postdating January, 2021, reasoning that he could not have relied on it in forming his opinions and actions during the relevant period, OCTC was permitted to introduce essentially whatever post-January, 2021 evidence it wanted.”
Eastman provided a further example of why this was unfair.
“For example, when Mr. Fried’s expert testimony regarding voter anomalies was presented, the court ruled it irrelevant because the anomalies were discovered after January, 2021,” the brief said.
Regarding Count 1 against Eastman, Failure to Support the Laws of the United States, for allegedly conspiring with Trump to disrupt the electoral count, Eastman said he “located no case where the Section 371 conspiracy statute was applied against individuals who actually disrupted congressional proceedings, much less those who merely lobbied for a delay in the proceedings to allow for further investigation of the issue at hand.” Protesters who interrupted the confirmation proceedings for Justice Brett Kavanaugh were merely arrested for disorderly conduct, a misdemeanor.
He went on, “The Hearing Department’s finding of culpability for count one hinges on the presupposition that Vice President Pence did not have the lawful authority to reject and/or delay the counting of electoral votes on January 6, 2021.” Eastman provided extensive evidence during the hearing that respected constitutional legal scholars believe Pence did have this authority. He listed Berkeley law professor John Yoo, who testified at the hearing, along with Professors John Harrison, Gary Lawson, Jack Beerman, and Robert Delahunty. Citing case law, the brief added, “even if Dr. Eastman’s statements about election illegality were false — and, again, he vigorously disputes that they were — they do not rise to the level of ‘deceit, craft or trickery,’ or even ‘by means that are dishonest.’”
Regardless, “the record shows that Dr. Eastman consistently described the Vice President’s authority as an ‘open question’ … as it indeed is.”
Count 2 against Eastman, another broad, vague ethical rule typically used to target conservative attorneys, Seeking to Mislead a Court, cited his filing in Texas v. Pennsylvania. Eastman responded, “[T]he Supreme Court itself issued no finding of falsity or attempt to mislead either by the State of Texas or Dr. Eastman. It did not even issue an order to show cause.”
Counts 3, 5, 6, 7, and 9 accused Eastman of “moral turpitude,” an ethical rule often used against conservative attorneys. He was accused of making false statements in his legal memos for Trump. The brief stated in his defense, “Dr. Eastman is not aware of any disciplinary action ever having involved an attorney’s internal brainstorming memo of potential issues to consider.” The scenarios Eastman laid out in the memos were discussed at the time in the public arena by many others.
Notably, “the memo did not advocate for the adoption of any of the scenarios it describes. Instead, the memo described potential paths for certification, some of which would have led to a Biden victory, others to a Trump victory.”
Eastman challenged Roland’s characterization of the three alternate slates of electors from Hawaii in the 1960 presidential election. He said she ignored the fact that it was the second slate, which was not officially certified, that was ultimately accepted and certified. Similarly, “the Trump electors were in exactly the same position” as the uncertified slate of Hawaii electors.
The next part of Eastman’s brief contested Roland’s finding that he made a false statement when he referred to “electronic manipulation of voting tabulation machines.” He listed examples of evidence, such as “vote injections indicative of ballot stuffing that had been identified in numerous statistical analyses, for example, and machine tabulator equipment in Antrim County, Michigan, in which votes for Trump had been electronically registered as votes for Biden.”
The brief said Roland’s opinion mostly ignored testimony regarding election problems from Eastman’s witness Garland Favorito. It went over Favorito’s extensive qualifications, as “cofounder of the non-profit, non-partisan election integrity group VoterGA; his 40-year IT background, including in the areas of data administration and security; his role as testifying expert before the Georgia 2020 Senate Judiciary Subcommittee and the House Government Affairs Committee in their investigations of fraud, errors, and irregularities in the 2020 election; and his authorship of a rebuttal report to Secretary of State Brad Raffensperger’s letter to the Georgia General Assembly, Vice President Pence, and certain Congress members relating to the election.”
Eastman said he produced evidence that observers were sent home from the ballot processing center at State Farm Arena in Georgia on election night, which was a violation of law, but Roland ignored that evidence. “The asserted claims of illegally processed ballots were therefore objectively tenable, at a minimum, and cannot serve as a basis for imposing discipline under the clear and convincing evidence standard,” he said.
The brief said Eastman was accused of stating during the Steve Bannon War Room radio show that there was “massive evidence” of “fraud.” However, Eastman never said that. He pointed out that Roland mischaracterized his actual statements. For example, he stated that there was “massive evidence that this election was at least conducted illegally, in violation of state statutes.”
He went over many of the illegal actions that were taken in various states. “The Hearing Department largely ignored this evidence of illegality, instead asserting that ‘there was no evidence of widespread absentee ballot fraud that impacted the outcome of the 2020 presidential election, as affirmed by federal and state courts that dismissed related claims due to lack of proof.’ … The Hearing Department’s claim that Eastman’s allegations were ‘baseless’ was based on the Hearing Department’s claim that his allegations were ‘contradicted by official investigations, audits, and court rulings.’ None of those sources contradicted the claims of illegality.”
He asked the higher court to reject Roland’s opinion. Eastman is also facing prosecution in the Georgia RICO case led by District Attorney Fani Willis and the alternate electors prosecution by Arizona Attorney General Kris Mayes. His GiveSendGo legal defense fund has raised $895,409.
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https://tennesseestar.com/justice/john-eastman-appeals-california-disbarment-over-his-2020-election-legal-work-calls-the-prosecution-orwellian/rachel-alexander/2024/09/18/
