Only five years ago, few people knew John Eastman’s name. But this California attorney shot to the national forefront in 2021 when major media instigated a vicious crusade against him.
MSNBC said he launched a “pressure campaign” on then-Vice President Mike Pence.
CNN called him the “father of [the] illegitimate theory that VP Pence could single-handedly overturn the 2020 presidential election.”
Subsequent indictments in Georgia and Arizona levied multiple charges of conspiracy, fraud, and forgery against him. California’s state bar has issued 11 disciplinary charges and recommended him for disbarment. As a result, he cannot practice law in his home state.
He lost his job as a professor at Chapman University’s law school. Bank of America canceled his accounts. He hasn’t even been able to renew his Transportation Security Administration precheck clearance while criminal charges are pending.
What did he do to deserve this treatment?
The answer to that question is the subject of The Eastman Dilemma: Lawfare or Justice, a documentary produced by Madison Media Fund.
“We set out with that movie to accomplish three things,” Eastman explained during a recent public showing in Michigan. “Lay out the evidence, lay out the legal strategy, and then talk about the lawfare so people get angry and do something about it.”
Eastman is a constitutional law expert and senior fellow with the Claremont Institute who once clerked for U.S. Supreme Court Justice Clarence Thomas. He now runs a public-interest law firm called the Center for Constitutional Jurisprudence.
Little did he know the repercussions in store when he answered a call in November 2020 from President Donald Trump, who asked for his advice regarding manifest problems with the presidential election earlier that month. Trump needed an expert in election litigation and constitutional authority.
“My role was to explain what I thought the constitution allowed for resolving disputes if electoral votes had been submitted that were improperly certified because the laws had not been followed,” explains Eastman. “And that’s clearly what we had.”
The U.S. Constitution is ambiguous on the topic of improperly certified elections, according to various law experts interviewed in the documentary, including Harvard University professors Alan Dershowitz and Lawrence Lessig, who happen to disagree with Eastman’s politics in general. When it comes to challenging an election, constitutional solutions “are as unclear as anything could be,” Dershowitz says.
Eastman says that he actually advised Pence against what many others had recommended — unilaterally rejecting the Biden electors and substituting Trump electors. Instead, he suggested deferring to various state legislatures to investigate their election results. After all, a number of them had appealed to Pence, saying “that their elections were illegally conducted, and the electors for Biden should not have been certified…. They wanted time to assess the impact of that illegality and then report back,” explains Eastman.
His advice coincided with a provision for failed elections in the Electoral Count Act of 1887, which followed the highly contested 1876 election that pitted Rutherford B. Hayes against Samuel J. Tilden. According to that bill, in cases of questionable election outcomes, the legislatures of affected states may remedy the situation.
Interestingly, in 2022 Congress amended the Electoral Count Act, deleting that solution. “If I wasn’t right about that, why did they bother to eliminate that provision?” Eastman asks.
“I was acting in a role as a private lawyer for President Trump, urging the decision-maker in the process — the vice president, the president of the Senate — to take action: what we call in constitutional language ‘petitioning the government for redress of grievances.’ There were grievances aplenty,” says Eastman. What the states wanted was a delay so they could investigate “to make sure that we were actually choosing the electors who had been properly certified and had actually won the election.”
Moreover, “as an attorney with a client, I was ethically obligated to press every plausible argument that benefited my client,” he points out. “Those that refused to acknowledge that history and that openness of the constitutional questions and pretended that this was already well settled, are being dishonest. And I think at some point they need to get beyond their visceral reaction to anything Trump and start getting back to the notion of honest assessment of argument.”
Two of the groups he’s addressing in that last statement are highlighted in the documentary: the States United Democracy Center, which filed a complaint against him with the California bar in October 2021, and The 65 Project. Both have targeted Trump election lawyers. Democratic fundraiser David Brock is advisor to the latter; he told Axios that their goal is not only to drag these lawyers before their licensing bars, but also to “shame them and make them toxic in their communities and in their firms.”
Eastman calls it a form of lawfare intended to silence attorneys in the future from standing up for what’s right in the face of political opposition. And while he’s practicing outside his home state, his battles in California, Arizona, and Georgia are ongoing. He has launched a crowdfunding page to help with his legal expenses.
You can watch the documentary free of charge at MadisonMediaFund.org.