John Eastman Disbarment Hearing Discussion

Hat-tip to Neshanian: The long-awaited disbarment hearing for John Eastman, former Chapman University law professor and legal architect of Donald Trump’s treasonous attempts to steal the 2020 election, including the attempted January 6 coup, is today starting at 10. Here is the link in case you want to check it out for yourself:

https://calbar.zoom.us/j/97985435232

Greg and Vern both have very busy days today, but Vern is going to liveblog it as well as he can; hopefully Greg can take over later. And any commentary from Neshanian or anyone else (especially attorneys) will be welcome. Check back over the course of the day, or listen for yourself!

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11 counts of misconduct. Judge mentions outrageousness of Eastman’s contention that Pence was legally able to call the election.

Eastman’s lawyers are trying to qualify an “expert witness”, Mr Fried, who is a CPA who purported to find “anomalies” in the 2020 election, hence Eastman’s actions were “tenable.” Fried’s qualifications to judge elections are ridiculed. He’s been a CPA for 40 years but he only got involved in elections in…. 2021! Eastman’s counsel tells judge he thinks she should be “ravenous” to hear from Fried!

Now they’re trying to qualify an expert witness called Mr Valentine, who also purported to find anomalies. Judge doesn’t see relevance of either witness, as they both published their BS AFTER Eastman’s actions.

Prosecution: Valentine wouldn’t even let us look at his data – reason enough to exclude the bastard.

Dr Matthew Seligman will be only witness allowed to watch proceedings as he will have responses to the miscreant himself, Dr Eastman. Justified because Eastman didn’t bother filing a deposition. JOHN YOO will also testify. Ugh. The testicle crusher.

Both Seligman and Yoo will be allowed to observe (not sequestered) but it sounds like Yoo may not be available. So many children’s testicles, so little time! But seriously, he’s not available? This must not be that important to him. And Eastman’s camp is acting like he’s IRREPLACEABLE.

List of witnesses Eastman decided NOT to call includes goofball Peter Navarro.

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A ten minute break turned into 30 minutes. Perhaps Dr Eastman was pooping. I recall how long and hard Chapman University strained to expel HIM.

They came back at 11:50. Yoo will deign to drop by sporadically tomorrow! Yoo and Seligman will be allowed to hear each other.

Opening statement from plaintiffs. Look at Eastman’s conduct from a larger perspective. Jan 6 and Pence was only last ditch attempt at many efforts to overturn legitimate election. Made knowingly false and frivolous statements and privately acknowledged his theories would never convince a court. He knew he was damaging the nation.

Quotes Pence counsel Greg Jacobs emails: “This was gravely irresponsible of you. Encouraged Trump, riled up violent people, would never have accepted this shit from Democrats.” State Bar will ask for disbarment.

Statement from Eastman’s counsel. Will paint with broad brush for now, there is so much.

1 tenability. 2 advocacy. 3 protected speech. 4 missed it, driving. Main point, there was so much suspicious about the election, and all Eastman was doing was trying to create some DELAY to straighten things out.

LUNCH BREAK! Back at 1:45.

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Now I’m hearing this whole thing could take 3 days, or 8 days. And I have to work from 2:30 to 4:30, so somebody should take this over. (Past 2, they’re still on lunch break.)

Eric provides this twitter liveblogger link: https://twitter.com/nhanson_reports/status/1671204974859259906?s=61&t=jhF3cKeD-1cIlr3qzgvZmQ

And Greg Diamond comes to the rescue! The following (until otherwise noted) is from Greg:

2:42 pm

While I don’t have time to watch four freaking days of hearings, I do have some ime to talk to various people (both lawyers and intelligent laypersons) between and after the daily sessions about their impressions of the trial. I’m going to lump all of my sources together into a composite pseudonymous figure whom I will call “Legal Kneagle” — pronounced “Kuh-nee-gull,” of course — who as a result of that may sometimes offer contradictory perspectives.

Kneagle’s overview was that this is a weird and novel case, and unpredictable given that it’s taking place in California. Why? Because of the entertainment industry, the high cost of housing, and the wide variety of international and fusion cuisine? No: because California’s disciplinary court has shown different values than those in most states.

Laypersons (our word for “non-lawyers”) often think — based partially on that damned entertainment industry! — that lawyers always have an almost unfettered right to present wild legal arguments even if there’s no basis to do so. In real life, not really true. Lawyers can and do get into all sorts of trouble for making unsupportable arguments in court and related procedures, and for giving clients unsupportable advice to rely on.

At least, that’s how it works in most states.

But California — by which I mean the state’s judicial system, or more specifically the California Bar Association, or even more specifically than that the independent judges of the State Bar Court — is well to one end of the spectrum: it places comparatively high value on the First Amendment. As a result, it is more hesitant than other states to second-guess the legal strategies that lawyers take, both in court and in advising clients, and to respect their right to make judgment calls.

California is no less harsh than other jurisdictions on possible violations that don’t involve the First Amendment — financial improprieties (especially self-dealing), ones dealing with the formalities of representation — but where other state’s courts might literally drag a lawyer into the dock for criticizing a judge or otherwise bringing the legal system generally into disrepute, California is averse to rein in anything that smacks of free speech. So if you want to call Justice Thomas a lying, self-serving grifter, Kneagle thinks that it’s helpful to be barred (here meaning a member of the bar) only in California.

But there are obviously limits to that. If, for example, one were to concoct a novel legal argument that it is permissible to murder used car dealers because used car dealers don’t have souls, and on that basis advise a client that they can go ahead and murder the dealer who sold them their 1978 Gremlin supposedly retrofitted for plug-in electric power because the murder laws were intended to prevent the killing of people with souls, one would be in trouble on two fronts. First, the notion of an exception to the murder laws is so off-the-wall and unjustifiable that it no longer qualifies as legitimate legal advice. More importantly, if someone does murder a used car dealer — sending a message to them all !!!1! — in that circumstance, they will raise the defense that they were acting on advice of counsel — which, at some level of a less ridiculous scenario, might even work. This is because we don’t want lots of murders of used car dealers — seriously, we don’t — and more generally we really don’t want people.to be able to get away with literally anything because they can find a lawyer stupid or craven enough to tell then that it’s OK.

This brings us to Rudy Giuliani, but also — more surprisingly — to John Eastman.

The prosecution argued in its opening statement that Eastman did not make a colorable legal argument (one that is serious enough to take seriously) that Vice President Pence could simply ignore the electors sent by their states. (This could mean “at all,” or “at least in the absence of strongly compelling evidence of identifiable and consequential fraud, which in any event would generally be adjudicated by the states themselves. Until the Supreme Court changes that, later this month or early next year.) Eastman’s goal in presenting arguments that he admitted in writing were specious (special call-out here to the righteous betrayers at Chapman University and its College of Law!) was simply to delay the process for long enough that the horrendous and antiquated provisions of the 12th Amendment could kick in, giving each state delegation one vote — meaning that California has the same say as Wyoming — in who should be elected President.

This is, not to put too fine a point on it, a coup. And there’s no basis for a lawyer to give legal advice to a client to justify a coup and thus exculpate him because he was “acting on the advice of counsel.” I believe that we take oaths to uphold the constitution, which does not mean grabbing it by the neck and holding it up in the air until it strangles…

3:20 pm

In their opening statement, Eastman’s lawyer — whom my composite source Kneagle considered somewhat surprisingly less-than-stellar — argued that the question of whether advising Team Trump that Pence could just refuse to count those electoral votes was not clear cut and was in fact a matter of scholarly debate. But examples — a footnote here, an offhand comment there — were weak.

Kneagle noted that a scholarly article lamenting that the VP did not have more flexibility determining whether slates of electors were valid and should be counted (or discounted) is certainly possible and permissible — but that’s only complaining about the law, not using such musing as a basis for putting a plan of having the VP overturn a vote into action.

And there are some aggravating factors here;

First, Eastman wanted to delay the certification for investigations into voter fraud, based on certifications that did not have the earmarks of seriousness (such as coming from percipient witnesses) but that we now know to be spurious. Maybe Eastman would not be charged with knowing that they were warmed-over hooey within a week of the election — but it should not have taken him long to conclude that they was nonsense and even collecting affidavits from people who had no foundation and basis for their declarations was done without integrity.

Second, Eastman knew that he was being asked to give legal cover for a coup. In fact, he knew that he had been sought out for just that purpose.

Third, did I mention that this was done to aid in a coup?

But here we reach a core issue in this trial: if this were a college student body election, would Eastman really be sanctioned by the State Bar with potential disbarment for giving spurious and tendentious advice? If not — and we can safely say “not” — and if it looks like it’s giving cover for a coup was the same sort of intellectual practice — then do we treat this as fundamentally different as a matter of attorney ethics simply because the stage is so consequential?

Kneagle thinks that, yeah, we probably do. If First Amendment terms, this was “yelling fire (at cops) in a crowded theater (of conflict between police and armed protesters.”)

But that’s only what should happen. You, Dear Reader, want to know what will happen. Kneagle is still willing only to call it as a coin flip. This is a proverbial “hard case that makes bad law”: we (and most importantly the trial and appellate judges in the State Bar) don’t want to tell lawyers that they can rend themselves out as “get out of free” cards for clients who want to bend the law into unrecognizable shapes — especially with immeasurable consequences. But neither do they want to have lawyers looking over their shoulders in advising clients for fear that — despite their best efforts, often making split decisions in active combat with an adversary — they might be second-guessed to the point where they are heavily fined or disbarred.

To some extent, there’s a check on this because the Bar Court may attend most carefully to lawyers who break the same rules repeatedly. But it’s hard to imagine that Eastman would be doing something like this again, simply because the opportunities for it are so scarce. On the other hand, it may be that the sheer consequentiality of this act makes relying on recidivism unnecessary. That’s why “scope of the consequences” may be the key fact that distinguishes this from other cases. In other states, Eastman might be strung up. But the State Bar Court in California, leery of suppressing legal actors trying to do their best, is reluctant to clamp down too hard on lawyers. But if the scope and the audacity of it distinguish this from garden-variety claims, that may allow them to decide that allowing this sort of action without consequence is a bridge too far.

When judges have a case where the law leads them towards a choice of perils, Scylla or Charybdis, they will often try to issue a narrow ruling based on the specific facts, a ruling that will not have much precedential value. If Eastman is disciplined at all — let along disbarred — it will be because the facts of what he did and how he did it were so specific, peculiar, and damning that the Bar Court can act against him without putting terrible fear into the hearts of most of the state’s practicing lawyers. If he’s not disciplined, or only weakly disciplined, it will be because the consequences for the profession (and thus for clients in legitimate need) are just too great.

Onward towards the evidence!

4pm

Court just came into session.

Cool, my old teacher and colleague Charles Stewart has an expert report admitted to this case!

4:37 pm

Thrust and parry, thrust and parry, over expert reports and whether Eastman read them and relied on the report that Stewart criticized. Prosecution is not making a whole lot of progress there.

Now we’re getting to the “alternate electors” issue, which was presented by Trump and/or Eastman with RNC Chair Ronna McDaniel, in which she has testified to the Jan 6 panel she says that they asked her to help the campaign gather “contingent electors” just in case they won a court battle in a given state. Eastman doesn’t recall the substance of the call. He says that they were assembles just to stay under the “safe harbor” provision by meeting in Dec. 14 to vote.

I want to say that this “rights preserving” action is evidence of an illegal plot, but if it were truly simply for contingency purposes and the electors knew it then maybe it’s permissible. But my sense is that the electors didn’t see themselves as merely contingent on winning a court case; they seemed to think that they were being asked to have their votes selected to count according to Pence — or at least used to neutralize both delegations and thus send the election to the state delegations.

The judge is taking a very assertive role in trying to pin Eastman down re conversations about contingent electors; he’s squirming out of it, but at the risk (or certainty) of pissing off the judge.

About Admin

"Admin" is just editors Vern Nelson, Greg Diamond, or Ryan Cantor sharing something that they mostly didn't write themselves, but think you should see. Before December 2010, "Admin" may have been former blog owner Art Pedroza.