Last week, the California State Bar Court recommended the disbarment of former law professor John Eastman, a primary legal architect of Donald Trump’s plot to obstruct the 2020 election. Importantly, the California case, which is technically still subject to appeal, also undermines a defense Trump has said he may want to use in his (now delayed) federal Jan. 6 criminal trial: that he relied on the advice of Eastman.
Such an “advice-of-counsel” defense, if successful, could absolve Trump of the criminal intent necessary to convict him. But defendants who raise this defense waive their attorney-client privilege. Revealing confidential communications is always a huge risk, and Eastman’s weekslong disbarment hearing certainly won’t make the legal landscape any easier. As California State Bar Judge Yvette Roland’s meticulous, 128-page decision concluded:
Eastman conspired with President Trump to obstruct a lawful function of the government of the United States; specifically, by conspiring to disrupt the electoral count on January 6, 2021, in violation of [the federal conspiracy statute].
That’s bad news for Trump. For jurors to credit the “advice-of-counsel” defense in any future criminal trial, Trump has to convince them that he reasonablyfollowed his attorney’s advice in good faith. If Eastman’s conduct did amount to a criminal conspiracy, as Judge Roland found, Trump will start out behind the eight ball in proving that he was reasonable taking the legal advice of an accomplice. Sure, Trump can still argue he didn’t know Eastman’s advice was wrong. But he’s got a problem there, too. According to the House Jan. 6 committee report and Trump’s Jan. 6 indictment, the top Justice Department and White House lawyers told Trump that there was no significant ballot fraud to justify challenging the election results. Significant ballot fraud was the fabricated core of Eastman’s arguments.
Evidence strongly suggests Trump also knew exactly why Eastman’s legal theory was frivolous. According to the House Jan. 6 committee report, White House counsel conveyed to Trump that Vice President Mike Pence lacked the legal authority to do what Eastman wrote to Trump, to delay or reject the Jan. 6 congressional certification of President Joe Biden’s election.As William Barr, Trump’s former attorney general, said last year, when Trump didn’t get the legal advice he wanted from government lawyers, he took matters into his own hands. Trump “search[ed] for a lawyer who would give him the advice he wanted.”
Notably, Wednesday’s California State Bar Court ruling wasn’t the first time a court had found that Eastman was a lawyer who “assist[ed] in the plot.” In March 2022, U.S. District Judge David Carter rejected Eastman’s bid to block the House Jan. 6 committee’s access to key emails sent from Nov. 3, 2020, to Jan. 20, 2021. Eastman had argued attorney-client privilege, but Carter concluded:
Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.
Here’s the point. It’s one thing to pop off in public with demonstrable lies, disinformation and phony legal arguments. It’s another to try to defend those lies in court, where facts and evidence rule.In Eastman’s case, his own words in private contradicted the manufactured facts and legal theories he spewed in public. Here are just three compelling examples from Wednesday’s ruling.
First, before Jan. 6, Eastman laid out for Trump a strategy to convince Pence that he, as the Senate’s presiding officer, was the “ultimate arbiter” of the validity of each state’s electoral vote.
But California state bar prosecutors produced evidence suggesting that both Eastman and Trump knew that strategy was legally flawed. On Jan. 6, Eastman told Pence’s lawyer Greg Jacob by email he had advised Trump that Pence could not unilaterally reject electoral votes.
The Vice President has the power to reject fraudulently chosen electors. Nonetheless, in his Ellipse speech moments before the Capitol siege, Trump told the crowd and (as he had already claimed on Twitter) that Pence had the authority to delay the electoral count. Indeed, after Pence rejected the fake elector slates, Trump egged on the mob via social media. “Mike Pence didn’t have the courage to do what should have been done,” Trump tweeted at 2:24 p.m. on Jan. 6, as his supporters engaged in hand-to-hand combat and vandalism. Second, Eastman’s claims rested on his theory of fake Trump electors — or, in his words, “contingent electors.” He asserted that they were justified because of states’ election law “irregularities” and resulting “fraudulent voting.” Yet in January 2021, Eastman admitted in another private email to Valerie Moon, a private citizen who had written him, that these “contingent” electors weren’t certified by state legislatures and therefore “had no authority.” Third, in court and in public, Eastman falsely stated that state election law irregularities and fraudulent voting had changed the result of the election. But California bar prosecutors showed convincingly that Eastman knew that he was only speculating — without real proof. On Nov. 29, 2020, he wrote to fellow MAGA lawyer Cleta Mitchell that no state legislature would reverse its certification of Biden’s election without “pretty compelling evidence of fraud. It would be nice to have actually hard documented evidence of the fraud.”Such emails from Eastman are now part of the public record, ready and available for Trump’s various criminal prosecutors. It is compelling evidence that the former president conspired to obstruct the election. Good luck, Mr. Trump, trying to persuade jurors that it was “reasonable” for you to rely on your co-conspirator’s incredibly terrible “legal advice.” And we can be sure that special counsel Jack Smith and Fulton County, Georgia, District Attorney Fani Willis are paying attention. This likely won’t be the last time we hear your lawyer’s damaging California testimony presented in a courtroom.
Dennis Aftergut
Dennis Aftergut is a former federal prosecutor, the former chief assistant city attorney in San Francisco and currently counsel to Lawyers Defending American Democracy. He signed LDAD’s December 2021 and States United Democracy Center's October 2021 bar disciplinary complaints against John Eastman.
Neil Goteiner
Neil Goteiner is a California trial lawyer. 
