“The available evidence supports a strong case that the State Bar should investigate whether, in the course of representing Mr. Trump, Mr. Eastman violated his ethical obligations as an attorney by filing frivolous claims, making false statements and engaging in deceptive conduct,” the letter said. “There is also a strong basis to investigate whether Mr. Eastman assisted in unlawful actions by his client, Mr. Trump,” to overturn the results of a legitimate election.
The complaint was written on behalf of the States United Democracy Center, a nonpartisan organization promoting election integrity co-chaired by former New Jersey governor Christine Todd Whitman, a Republican, and Norman Eisen, who served in the Obama White House and worked with House Democrats during the first Trump impeachment.
Eastman rejected the complaint in an interview Monday, saying he simply presented options to the White House and was asserting the right to petition “the government for redress of grievances.”
“One of the grievances was that nothing was being done about acknowledged illegality in the conduct of an election — asserting a constitutional right is not a disbarrable offense,” Eastman said. There has been no evidence of widespread fraud or illegal actions concerning the result of the election.
Eastman said he believes he “will be fully vindicated” once the full memo and his account of the meetings with Trump and Pence are reviewed.
Stephen Gillers, an expert on legal ethics at New York University’s law school, called the request for investigation “a very meritorious complaint. The ethics rules are clear: You cannot assist your client in illegal conduct by giving the patina of a legal argument that is actually baseless. This will be investigated — and of course we need to see Eastman’s full response.”
The request for an investigation of Eastman is important, Eisen said, “because the harm that was done by false claims of election fraud continues to reverberate and is deeply damaging to the nation.”
Those concerns mirror some expressed already by members of the congressional panel investigating the Jan. 6. attack who have requested documents related to Eastman and his communications with Trump, Pence and others in the White House. Panel members have suggested that the effort to persuade Pence to block or delay the counting of electoral votes amounted to an attempted coup. Eastman said he has had no contact with the committee.
Eastman has the résumé of a strong and well-credentialed conservative, but his association with Trump’s attempt to contest the election has provoked criticism from the left and the right. He clerked for Justice Clarence Thomas on the Supreme Court and for J. Michael Luttig, a former federal appeals court judge who was consulted by Pence’s team. Luttig has publicly criticized Eastman’s legal reasoning about potential vice-presidential power to delay or block certification of electoral votes as “incorrect.”
The complaint cites two memos written by Eastman, which argued that Pence had authority to prevent the counting of ballots from select states or to postpone the count altogether.
Eastman said the first memo was preliminary and the second makes clear that he was simply laying out options for Pence and Trump. That second memo was “designed to outline all of the scenarios that had been discussed,” he said in an interview.
Confirming details of his conversation with Pence on Jan. 4 — first disclosed in a podcast interview with a Harvard Law School professor Lawrence Lessig — Eastman said that he told Pence that it was an “open question” as to whether the vice president had the authority to “simply declare Trump reelected unilaterally.”
“Quite frankly, I think it is the weaker argument,” Eastman said he advised Pence at the time. “But even if you had such authority, it would be foolish to exercise it absent alternative certifications to the Trump electors by the state legislatures.”
But the complaint said that Eastman’s protests were at odds with the text of his memos and with accounts showing that Trump repeated the claim on Jan. 5 that Pence could throw out the ballots of Biden electors.
“Evidence indicates that Mr. Trump and Mr. Eastman initially sought to use the memoranda to force Mr. Pence to set aside ballots,” the complaint says. “If Mr. Eastman ever abandoned that argument, it was only because it had become clear that Mr. Pence would not yield on that issue. Mr. Eastman’s own account implicitly confirms that view, stating that the President’s demand was narrowed to delaying the count only ‘after all was said and done.’ ”
Eastman provided a preliminary response to the complaint by threatening a potential defamation lawsuit against the signatories and defended his various actions outlined in the complaint around Trump’s efforts to overturn the results of the 2020 election.
“Is it now a disbarrable offense to engage in political speech, First Amendment protected?” Eastman said, addressing his remarks at the “Stop the Steal” rally on Jan. 6 mentioned in the complaint. “These guys are going way out on a limb, and it’s going to be very interesting to see the detail of the complaint, and how many causes of action I have for defamation.”
The complaint makes the case that a lawyer dealing with the courts is not protected by the First Amendment.
“A lawyer must avoid speech that is intentionally false or deceptive, . . . that asserts or advances frivolous claims, . . . or that knowingly assists the client in unlawful conduct,” the complaint says. It maintains that Eastman knew the claims were frivolous because by early December, Trump and his allies had lost more than 50 post-election lawsuits.
“Mr. Eastman’s memoranda sought to justify a brazen power play by Mr. Trump that aimed to set aside the results of an election that had been repeatedly and authoritatively determined to be free and lawful, and to potentially install the loser of that election as a winner, based on nothing more than a false narrative that Mr. Trump had originally authored,” the complaints says.
In numbered stages in a memo titled “January 6 scenario,” Eastman outlined how Pence, charged by the Constitution with counting electoral ballots, could have ignored results from seven states that tipped the presidency to Biden.
“The main thing here is that Pence should do this without asking for permission — either from a vote of the joint session [of Congress] or from the Court,” Eastman wrote in that memo.
A subsequent, longer memo elaborated on some of the proposals and suggested Pence could delay counting of electoral ballots until after state legislatures conducted their own audits of election results.
Eastman acknowledged that the scenario laid out in the later memo is “BOLD.” But he said that they are justified because “this Election was Stolen by a strategic Democrat [sic] plan to systematically flout existing election laws for partisan advantage” and because “we’re no longer playing by [Queensberry] Rules, therefore.”