With all the excitement in the news over the past couple of weeks—defendants in the Georgia RICO case flipping, Mark Meadows flipping in the DC federal case, the chaos around choosing a House Speaker—I lost track of the ongoing California Bar disciplinary proceedings against John Eastman.
The State Bar of California filed formal disciplinary charges against Eastman on January 26th of this year. The complaint alleges eleven counts of various violations of California’s Business and Professions Code for Eastman’s actions involved in the 2020 election, including failure to support the Constitution and laws of the United States, several counts of seeking to mislead a court, and multiple counts of moral turpitude and/or misrepresentation.
The hearing was continued a number of times over the summer, due to typical haggling over witnesses and exhibits. The California Bar discipline proceedings are going much more quickly than those in Texas, although I imagine Eastman will likely appeal any unfavorable ruling. By the time I realized that the proceedings were being livestreamed, the prosecution had rested, a number of Eastman’s witnesses had already testified, and we were now on Eastman’s direct examination.
Eastman, along with other January 6th coup-plotters, has had to juggle scheduling of bar disciplinary hearings and criminal trial appearances. (Ken Paxton had to juggle oral argument at the 5th District Court of Appeals with his impeachment hearing). As some of us may recall, Eastman appeared before the January 6th Committee and pled the Fifth (asserted his right to remain silent) over 100 times. In this hearing, Eastman is being more forthcoming with information, although he occasionally remarks about needing to maintain lawyer-client confidentiality and avoid self-incrimination.
Eastman’s strategy appears to be the argument that—whether he was right or not—he had “credible” evidence of fraud, his legal arguments had some (small and strained as it was) historical support, and that his intent was “to get to the truth.” According to Eastman, all of the “evidence” was brought to him by “highly credible, experienced people.” In essence, he is making the same arguments that were made in the January 6th litigation that have since been debunked.
Eastman admitted to being in the Willard Hotel on January 5th and 6th. There were two “suites” (i.e., “war rooms,” language not used by Eastman) where strategy was being conducted. A larger suite was operated by the organizers of the Freedom Plaza rally, and Eastman said he had little contact with these folks and did not even know who many of them were. A smaller suite rented by Rudy Giuliani (Giuliani was staying in the bedroom part) was monitoring the electoral vote count as well as the runoff election in Georgia. Also in this room were Steve Bannon, Boris Epshteyn and an unnamed investigator who was supplying “information that Rudy requested.”
Eastman testified that he did not plan to appear on stage at the “Save America” rally, but was persuaded to do so by Giuliani, who went with him. Eastman says he had no prepared remarks, so everything he said was “spontaneous” and he could not recall details. Eastman said his focus was on getting then Vice-President Pence to send electoral votes back to state legislatures, and he never intended to incite violence—nor had any expectation of doing so. Eastman said he and Giuliani left the rally about halfway through Trump’s speech and went back to the Willard war room to follow the electoral vote count.
Eastman continues to push his theories, as well as his belief that there was evidence of foul play in all of the swing states. Eastman testified about an infamous “Report 3” submitted in Mesa County Colorado which was found to have been baseless. Eastman also referred to the 2020 documentary Kill Chain: The Cyber War on America’s Elections, and dubious “evidence of suspense folders” in Georgia (which was in the middle of a run-off vote) as if they were gospel. Eastman also attempted to introduce “post-election evidence” of the fraud he is alleging, but since the issue is what he knew (or reasonably believed) on or before January 6th, Judge Roland has excluded any so-called “evidence” produced after January 6th.
Which leads to two troubling issues: If Eastman (or any attorney) truly believes the BS presented by a client, does this absolve the attorney against charges of bad faith? There was a huge and well-coordinated (and very well-funded) effort in all of the swing states to cast doubt on election integrity and results. This effort included literally hundreds of eye-witness voter affidavits in targeted (i.e., Democrat-leaning or BIPOC populations) jurisdictions, in addition to academic-style articles and “studies.”
First, there are genuine questions—which most state bars do not adequately address—as to how much due diligence and investigation is required by attorneys when they have clients literally burying them with “evidence.” Another source of angst (at least for me) is the huge right-wing disinformation machine that has captured even educated and professional persons—who are in positions where they can do (and have already done) a lot of damage. What can be done about this without implicating the First Amendment?
Bar discipline generally involves a single attorney, and most cases are brought for a small range of specific bad acts: mishandling of trust account funds, fee disputes, other disputes about service quality with clients, conflicts of interest, and (rarer) “sham” pleadings with “knowingly” false statements or “frivolous” legal arguments. Sometimes an attorney has been convicted of a felony, which results in automatic disbarment in many jurisdictions. But there is no RICO-like mechanism for determining violations when there is a multi-state conspiracy of attorneys attempting to commit a coup—or any other legally ill-defined “crime.” Others have remarked on how ill-equipped our legal system is generally to deal with Trump and Trumpism, as the legal system struggles to control a malignant, narcissist, sociopathic former President who has “no respect for the rule of law.”
Judge Yvette Roland is the official who is overseeing Eastman’s disciplinary case. Roland—who has been an attorney since 1987—was appointed to her position in November of 2014. Prior to her appointment as a State Bar judge, Roland worked at Duane Morris, a 700-attorney private firm based in Los Angeles, where she focused on patent, copyright, and product liability litigation. I did not get to see how Roland handled the Bar’s presentation of evidence, but with Eastman she is polite yet very no-nonsense, disallowing duplicate evidence or repetitive testimony and admonishing both sides at various times to “move along.” This may be part of her judicial temperament, but there have been subtle signs that she is skeptical of Eastman’s belief in his own BS.
The main attorney representing Eastman is Randy Miller, who has a good reputation for “professional defense” cases. Eastman has also retained Zachary Mayer, who works in Miller’s law firm. Eastman seems smart enough to avoid the more marginal, “clown show” attorneys favored by Trump.
Representing the California Bar is lead attorney Duncan Carling, and attorneys Christina Wang and Samuel Beckerman.
You can follow the case status here. The case number is SBC-23-O-30029, or you can enter Eastman, John Charles to pull it up. On hearing days, you can connect to the Zoom livestream link here. The Eastman hearing will resume Monday, October 30th at 9:00 am, when the defense will finish the direct examination of Eastman, to be followed by the Bar’s cross-examination (which I am looking forward to). Judge Roland has also scheduled hearings for November 2nd and 3rd for rebuttal testimony and closing arguments. Each hearing day will start at 9:00 am Pacific (California) time, so you will need to figure your own time zone differential.
Both sides have 75 minutes for closing, and then a couple of weeks to submit summary briefs. My guess is that Judge Roland will give us a decision before the end of the year.