Opinion The recommendation of Eastman’s disbarment is a big deal — for Trump
Rudy Giuliani’s law license is suspended in New York, and he has been recommended for disbarment by the D.C. Bar Association. Sidney Powell was sanctioned by a federal judge in Michigan. Jenna Ellis was censured in Colorado and, after pleading guilty in Georgia to election-related charges, faces possible disbarment. Former Justice Department lawyer Jeffrey Clark testified last week in a D.C. Bar investigation that could result in the loss of his law license.
Eastman can appeal, but Judge Yvette Roland’s meticulous 128-page ruling rests on devastating factual findings and airtight legal analysis.
Eastman lost on 10 of the 11 counts of misconduct stemming from the failed coup. Roland reviewed Eastman’s memos advocating for “alternate” electors, his representations to multiple courts and his public comments to determine whether Eastman “acted dishonestly in his comments and advice” and pursued legal action to obstruct the “lawful electoral process.”
Among the judge’s factual findings:
- Despite his representations in Texas’s case (which eventually lost at the Supreme Court) and other suits attempting to throw out Joe Biden’s electoral votes, “Eastman knew that there was no actual evidence of outcome-determinative fraud in the 2020 presidential election.”
- Specifically, Roland said, Eastman knew that in challenging Georgia’s election results (the subject of Trump’s Georgia criminal trial) that some allegations and evidence proffered by experts were “incorrect” but submitted them anyway. These included the baseless claims concerning vote-counting at the State Farm Arena (where Ruby Freeman and her daughter Wandrea “Shaye” Moss worked). Again, the judge found, Eastman specifically represented to the court there was outcome-determinative fraud when he knew or should have known there was not.
- In multiple cases, Eastman claimed there was precedent for submitting dual electoral slates from 1960 presidential election results from Hawaii. However, in the Hawaii case, there had been no previously certified slate. “Eastman, as a constitutional scholar, understood that alternate, contingent or dual slates of non-certified electors would carry no import on January 6 during the counting of electoral votes” in states in which electoral slates had already been certified.
- Eastman’s two-page and six-page memos to Trump lawyers deliberately misrepresented that there had been dual slates of electors submitted, that then-Vice President Mike Pence could disregard the Biden slates, that there was “solid legal authority” for Pence to disregard the Biden votes and that illegal votes had been counted.
- Eastman deliberated misrepresented on Stephen K. Bannon’s radio show that outcome-determinative fraud took place in Pennsylvania, Georgia and Wisconsin, and urged listeners to pressure state legislators. “Eastman aimed to instill doubt about the election, prompting listeners to advocate for certifying Trump’s electors over Biden’s as part of his strategy to delay the electoral count,” Roland found.
- Reversing advice given a day earlier to Trump and others, Eastman on Jan. 5, 2021, insisted to Pence’s lawyer and chief of staff that Pence could throw out electoral votes. Eastman eventually conceded “during the 130 years that the Electoral Count Act had been in effect, there was never a departure from its procedures.” Nevertheless, Roland noted, Eastman urged Pence to delay the counting, which also lacked precedent.
- At the Jan. 6 Stop the Steal rally, Eastman lied to the crowd in “alleging illegalities, election fraud, fraud involving Dominion voting machines and demanding that Vice President Pence unilaterally delay the 1:00 p.m. electoral count to allow state legislatures to investigate these issues.”
Eastman’s lies were brazen. For example, during one court proceeding in which he represented that fraud had occurred, Roland said, his “contemporaneous email to Cleta Mitchell … [stated that] there was no documented evidence of fraud that existed but expressed optimism in the potential discovery of such evidence.”
In short, “As a constitutional expert, Eastman knew that the only slates of electors which Vice President Pence could lawfully consider, were those included in the certificates of ascertainment executed by the governor of each state,” Roland wrote. Whether in court statements and filings, his two memos or appearances with Bannon and on the Ellipse, Eastman knew any alternate slates were illegitimate.
These factual findings mirror the House Jan. 6 committee findings. Whatever the venue, whomever the defendant, a mound of evidence points to Eastman’s, and by extension Trump’s, participation in an attempt to steal the election. Juries in the Georgia case (where both are indicted and are pleading not guilty) and in special counsel Jack Smith’s D.C. case against Trump will hear many of the same facts.
On matters of law, Roland wrote that while attorneys have a First Amendment right “to make statements in public in the course of their professional duties … this right does not extend to making knowing or reckless false statements of fact or law.” She added, “Likewise, the First Amendment does not protect speech that is employed as a tool in the commission of a crime.” That defense did not protect Eastman, and it is unlikely to afford any to Trump, who has raised the same defense repeatedly. (Judge Tanya Chutkan rejected his First Amendment defense in D.C. federal court. Georgia state court Judge Scott McAfee in Thursday’s hearing sounded appropriately skeptical of this defense as well.)
Roland reached this damning conclusion:
The evidence clearly and convincingly proves that Eastman and President Trump entered into an agreement to obstruct the Joint Session of Congress by unlawfully having Vice President Pence reject or delay the counting of electoral votes on January 6, 2021. … Upon consideration of the totality of the facts, the court finds weighty circumstantial evidence demonstrating a collaborative effort between Eastman and President Trump to impede the counting of elector votes on January 6, 2021, as articulated in Eastman’s memos.
Matthew Seligman, who appeared as an expert witness for the California bar, tells me, “The judge’s decision found that Eastman’s conspiracy theories about voter fraud lacked any basis in fact, and his radical plan for Vice President Pence to throw out electoral votes lacked any basis in law or history.” Seligman added, “By recommending his disbarment, the decision reaffirms that lawyers may not conspire with their clients to undermine the rule of law.”
Roland’s finding of an illegal agreement (or conspiracy) is not the first. Considering the House Jan. 6 committee’s subpoena for Eastman’s documents, Judge David Carter reached a similar conclusion. The Jan. 6 committee did as well. These decisions are not binding on the judges or juries in the D.C. Jan. 6 or Georgia trials, but they certainly underscore Trump’s legal vulnerability. Moreover, these decisions suggest that Trump’s “advice of counsel” defense, inapplicable if you and your counsel are engaged in a crime, is doomed to fail.
In sum, Roland’s decision does not bode well for Eastman in his criminal case in Georgia. And insofar as Trump is likely to face much of the same evidence and to offer the same defenses, he has plenty to worry about in D.C. and Georgia. No one, it seems is buying their excuses.
Posts
No comments:
Post a Comment