There is no way to describe the show trial by the California State Bar against John Eastman other than a gross abuse of power. That any government agency in our free nation would pursue the law license of a lawyer for expressing his reasonable opinion regarding the law for his client is shocking and dangerous to any citizen that cares about freedom and may need, at some point in their life, representation by a zealous lawyer.
For those of you who have not been following the developments of this kangaroo court of a hearing, John Eastman wrote a memorandum for the Trump Campaign advising them of their rights to challenge the outcome of the election in 2020. He analyzed the facts of the election, the law regarding the counting of Electoral College votes, and advised of potential actions available to challenge the counting of those votes. I want to address in this article how he was correct on the law, and in the next two articles just how destructive to freedom this trial truly is.
First, the law.
The presidential election of 2020 was very unique. The alleged pandemic was used to justify the use of executive and judicial power in a number of states to change election law without the consent of the various state legislatures, and thus having changed the law, conducted the election in those states according to the changed legal procedures.
Why is that wrong?
Article I, Section 4 of the United States Constitution leaves the determination of the “time, place, and manner of federal elections” to the state legislatures. While there is some debate about what that means, that is, can a state legislature adopt election procedures without the consent of the governor of their state, or must it be by state law adopted by the Legislature and signed by the Governor. That being said, it is abundantly clear that neither the Governor, Secretary of State, or state and federal courts can change state law without involving the Legislature. That is exactly what happened in 2020. In a number of states, including the battleground states of Pennsylvania, Michigan, and Wisconsin, the Democrat Governors and Secretaries of State literally rewrote election law by executive fiat, and then counted the votes according to these “new laws” adopted without the consent of the Legislature. In Arizona, a federal court declared state law unconstitutional and then, without involving the Legislature, rewrote the law in the way the judge thought was correct. I don’t question the right of federal judge to declare a law unconstitutional, but that same judge cannot then just “rewrite” the law. He or she must return it to the Legislature for action. The Arizona judge did not do that. There really was a serious question as to whether the actions of these Governors, Secretaries of State and federal judges were appropriate, especially in light of the restrictions of authority in Art. 1, Sec. 4 of the Constitution.
The question is, then, if these actions did indeed violate the Constitution, as I think they did, what remedies were available to correct the actions of the Executives and courts in these states. I want to make it clear, I am not talking about “fraudulent” votes in the sense that ballot boxes were stuffed or people not registered to vote actually voted, I am saying that votes that were cast in a manner not consistent with state law should not have been counted. Yet they were.
So how do you fix that?
In 2020, the Electoral Count Act, which had been in effect since the late 1800s, had two remedies, one allowed the state legislatures to step in, and appoint a slate of Presidential Electors, if the election could not be completed “by election day.” Since, in many cases, the changes in the law allowed absentee (vote by mail) ballots to be turned in up to three days after the election, it could easily be argued that the State Legislatures could step in. They chose not to, but it would have been allowed.
The second remedy allowed was a challenge by Members of Congress at the time the votes were counted. This was the remedy Eastman counseled the Trump campaign to follow. If I were the Trump campaign, I would have used the first remedy, filed a lawsuit before the election to have the illegally cast votes separated and had two separate counts of those votes, one with and one without the illegally cast votes, to see if there was a difference. The Trump campaign chose not to do that, but rather challenge the illegally cast votes in Congress. That remedy was specifically allowed by the Electoral Count Act, Eastman told the campaign how to exercise that remedy, and now he is facing losing his license for actually counseling his client about legal remedies for what was arguably a constitutional wrong justified by an alleged health emergency. He was not wrong.
Proof that he was not wrong is that in December 2022, Congress enacted and President Biden signed, the Electoral Count Reform Act, to remove the remedies I described above. Eastman found a remedy that had existed for 150 years, and, when it was found, Congress panicked, and changed the law.
The fact that no one else found it in 150 years doesn’t mean that Eastman did anything wrong. He did what any good lawyer would do, he advised his client of their available courses of action. The fact that the left doesn’t like his advice is not grounds for discipline of any kind. That is why this is a gross abuse of power.
Freedom requires not just a free press or the right of free speech or the right of association, it requires lawyers who are unafraid to take unpopular positions to promote their clients’ interests. The fact that some bureaucrat somewhere, and his allies on the left in the private sector don’t like it is not evidence that it is wrong or evil. If this action was taken against the ACLU for an unpopular opinion they hold, the press and the left would be screaming from the rafters about the death to freedom and democracy from the overreach by the government for taking the action. However, because Eastman is a conservative who advised a President that the left finds absolutely abhorrent, this action is justified in the press and among the governing elite.
That is just plain wrong, and it is a gross abuse of power.