It was a mistake to write off Eastman then. And tempting as it is to dismiss him as a threat neutralized with Trump’s removal from office, it would be an even bigger error to write him off now.
Because Eastman, 61, has plans. Ever since Bob Woodward and Robert Costa’s new book, “Peril,” surfaced his election memorandum, his legal reasoning has been widely criticized. But it isn’t stopping him from using the law to advance his agenda. Along with his former Chapman University law-school colleague Anthony Caso, Eastman has founded a new firm in Orange County called the Constitutional Counsel Group. (Eastman and the Chapman University law school, where he was once dean, parted ways after Jan. 6.)
Eastman says he expects to be the “tip of the spear” on litigation over the separation of powers, using lawsuits to challenge executive-branch overreach — such as Occupational Safety and Health Administration directives related to covid-19. The executive branch, his theory goes, is acting in areas that it can’t, absent laws passed by Congress. It’s an interesting take from the guy who suggested the vice president had authority to block Congress from certifying official state vote tallies.
Eastman is also employing his constitutional-law background to sway the high court, filing amicus curiae briefs on issues near and dear to him. In the Supreme Court term that opened last week, Eastman and Caso have filed briefs on behalf of the Claremont Institute, where both men staff the conservative think tank’s Center for Constitutional Jurisprudence. Their work includes interventions in the term’s two most high-profile cases, where the men side with gun owners attacking New York’s strict gun-control law and with the state of Mississippi in trying to overturn Roe v. Wade.
Will their efforts have any effect? “There are only a certain number of constitutional scholars willing to work on the conservative side,” said Frank Schubert, Eastman’s campaign strategist in his 2010 run for California attorney general — a race ultimately won by Kamala D. Harris. “He knows the conservative majority, how they think, what they’ve written. … I don’t expect that, long-term, he is going to be shunned.”
Then, of course, there is the ongoing fallout from the election. In an interview, Eastman said he remains convinced that President Biden did not legitimately win and is advising groups involved in election-integrity issues. “Pretending that there wasn’t anything that occurred is a big red flag,” he warned. He declined to disclose whether he still has a relationship with former president Trump, saying that would be violating attorney-client privilege.
Eastman also raised the possibility of suing media outlets and others for defamation. Though the bar is high for proving requisite malice under current precedent, he said: “Maybe my case will be the test case.”
All of this assumes, of course, that Eastman retains his law license. A bipartisan group of 25 legal scholars, retired judges and political figures is calling on the California State Bar to investigate him for violating his ethical obligations as an attorney, a step that could lead to censure or disbarment. Eastman, however, plans to fight back. “If you’re not catching incoming flak, you’re not over the target,” he told me. He dismisses the campaign to get the bar to investigate his role in the Jan. 6 riot as a “hack job,” though its signatories include a former high-ranking official in Ronald Reagan’s Justice Department and a former California Supreme Court justice appointed by Republican Gov. Pete Wilson.
Eastman’s present activities and future plans fit with a history of trying to invalidate laws he doesn’t like. This was certainly the theme of my 2010 encounter with him. I was an editorial writer at the Sacramento Bee, and Eastman was seeking our endorsement for his campaign to be the Republican nominee for state attorney general. He answered every question we put to him. Same-sex marriage? Not legal. Abortion? Not in the Constitution. Gun control? Many California gun safety laws violated the Second Amendment. Children born here to parents who are undocumented immigrants? Not citizens. The Affordable Care Act? He’d sue to invalidate the law, which provides health-care coverage to 1 in 3 Californians. We disagreed on every point.
But it certainly wasn’t obvious that, a decade later, Eastman would be on a stage near the U.S. Capitol next to Rudolph W. Giuliani, arguing that Biden owed his victory to vote tampering. Whatever lies in store for the decade ahead, it’s a safe bet that Jan. 6 stage performance won’t be the Eastman Show’s last act.