If you ask former law professor John Eastman, he was just doing what any lawyer would do and there was nothing untoward about his advice to former President Donald Trump after he lost the 2020 election. Nothing to warrant the charges filed against him in Fulton County, Georgia, last week. He was merely providing “zealous advocacy on behalf of” his client, the defendant said in a statement as he surrendered to Fulton County authorities Tuesday.
But that’s not how Fulton County District Attorney Fani Willis sees it. Last week, she secured an indictment that charged Eastman, Trump and 17 others for attempting to overturn the results of the presidential election in Georgia. Nor is Eastman’s characterization that he was providing “zealous advocacy” how special counsel Jack Smith sees it. In the federal indictment charging Trump with trying to illegally stay in office after losing in 2020, Eastman is named as “co-conspirator 2.” And based on what we know, it’s going to be hard to dispute Willis’ and Smith’s view of events.
It’s hard to overstate how critical Eastman was to Trump’s plot to ignore the voters’ choice of Joe Biden and stay in the White House.
It’s hard to overstate how critical Eastman — who retired from Chapman University soon after the Jan. 6, 2021, attack on the U.S. Capitol — was to Trump’s plot to ignore the voters’ choice of Joe Biden and stay in the White House. Eastman wrote a pair of memos that laid out a scenario where Trump would remain in office by exploiting what he falsely claimed was a loophole in federal law to reverse the election’s results. It’s a scheme that relied on a set of “fake electors” casting fraudulent Electoral College votes in certain swing states Trump lost. That “alternate slate” would give Vice President Mike Pence the pretense to either declare Trump the victor outright or let GOP-controlled state legislatures decide which votes to accept.
If he had framed those memos as a long-shot hypothetical for a client that insisted that every potential option be provided to him, then Eastman’s claim that he was simply offering what “attorneys are ethically bound to provide” might hold more water. He tried to say as much in late 2021, telling CNN that his second, more detailed, memo had merely “explored all options that had been proposed.” He likewise told the conservative magazine National Review that plans he’d laid out were “not viable” and the proposal to overturn the election results “does not accurately represent” his views. He added, perhaps gilding the lily a little, that “[a]nybody who thinks that that’s a viable strategy is crazy.” His employer, the Claremont Institute, issued a rather lackluster defense of his actions, claiming that Eastman was just offering Pence advice.
But the grand jury indictments obtained by Smith and Willis charge Eastman with doing more than just writing those memos as academic exercises but advocating for them to be used as a guide. Eastman allegedly pushed state legislators in Georgia and Arizona to “decertify” their election results. He lied to Republican National Committee Chair Ronna McDaniel about the way the fake electors’ would be used in their plan, according to Smith. He suggested that the Supreme Court might side with Trump even after the Electoral College had met, writing in an email that the ”odds are not based on the legal merits but an assessment of the justices’ spines.”
As noted in the charges against him in Georgia, Eastman admitted in an email the claims of fraud in a lawsuit he and Trump signed off on were false before filing it anyway. The federal indictment accusing Trump of trying to overturn the election says that when Eastman was told that his plan would cause riots in the streets, he responded that “there had previously been points in the nation’s history where violence was necessary to protect the republic.”
If he were to claim in court that he had changed his mind about his memo, though, or that it was just a thought exercise, that likely wouldn’t fly. He continued to call for Pence to delay certifying the election even after the Jan. 6 attack had concluded. Eastman was also caught on camera later that year defending the legal reasoning in his memo and insisting that Pence should have taken its advice. That doesn’t sound like he believes his strategy wasn’t viable. And when NBC News’ Ali Vitali asked him Tuesday if he still believes the 2020 election was stolen, he gave a terse answer: “Absolutely, no question in my mind.”
The indictments charge as crimes the actions Trump’s team took beyond those legal avenues.
In his statement before he surrendered for booking Tuesday, Eastman previewed his defense strategy. It’s clear that he intends to go beyond arguing, as Trump’s lawyers have, that the charges are an infringement upon his right to free speech under the First Amendment. He instead claimed in his statement that the charges have a chilling effect on another First Amendment right, the right to petition a government for redress of grievances. “The attempt to criminalize our rights to such redress with this indictment will have — and is already having — profound consequences for our system of justice,” Eastman declared.
Smith already countered that argument in the federal election indictment against Trump. There were numerous legal ways to petition the government after the election, all of which Trump’s lawyers undertook. They just happened to lose every one of those court cases. Also, not a single recount that was conducted changed the results of the election. The indictments charge as crimes the actions Trump’s team took beyond those legal avenues.
Smith hasn’t charged Eastman or the other co-conspirators in the federal investigation, but there’s still a chance that changes. Eastman has plenty on his plate to deal with, regardless, including a pending trial in Georgia and ongoing disbarment proceedings in California related to his role in trying to overturn the election. He claims that he was just doing what any lawyer would have done, but there were many, many lawyers working for the Trump campaign and White House at the time Trump lost. It’s no mystery why Eastman is among the group of Trump attorneys that finds itself in big, big trouble.
Hayes Brown is a writer and editor for MS NOW. He focuses on policymaking at the federal level, including Congress and the White House.