This is my third, and final, comment on the trial of John Eastman. In my first article, I commented on how the entire proceeding is wrong, because Eastman did nothing more than advise a client about available remedies for the alleged voting wrongs in the 2020 elections. That his advice has some basis in the law is the fact that, in 2022, Congress voted to change the law because it saw that Eastman was right in his interpretation of the Electoral Count Act (ECA) in effect in 2020, and Congress wanted to foreclose future challenges to Electoral College slates from states where there is accusations of voting irregularities. In 2020, the law allowed the remedy proposed by Eastman to the Trump campaign, now it does not. Whether one disagrees with that interpretation of the ECA or not is not grounds to pursue disciplinary proceedings against a lawyer with whom the Bar disagrees, even if a majority of lawyers think that lawyer was wrong.
My second article pointed out, as proof that this proceeding is politically motivated, that the State Bar has been slow to prosecute real criminality by lawyers that has caused real damage to clients, like failing for years to pursue an investigation against Thomas Girardi, a politically connected lawyer in Los Angeles, who stole millions from clients, and avoided disciplinary action by the State Bar because of his political connections. That was a real crime that the State Bar did not investigate for years, allowing Girardi to engage in his criminal behavior and steal from clients, a real wrong. The State Bar wasted no time in going after Eastman because he gave politically unpopular advice. He advised a client to pursue a remedy that was arguably allowed by law, but definitely politically unpopular. Steal money? The Bar will wait for 5 or ten years to investigate. Help Donald Trump, and zap, they’ll go after you immediately. It is just plain wrong.
My third point, and the point of this article, is that there is no way this proceeding is unbiased. It is an “administrative” proceeding. When this is all done, an “administrative law judge” may (as she has already hinted she will) find that Eastman committed some wrong. The important point to understand is that “administrative law judges” (ALJs) are not judges at all, in the traditional understanding of that word. They used to be called “hearing officers” until their government union got their name changed. They are not appointed by the Governor, they are hired by the state government, just like any other bureaucrat. So the state government hires the investigators who are charged with determining whether the lawyer committed some wrong. If they come to the conclusion they have, prosecutors, also hired by the state government, file the charges against the lawyer, and an ALJ, also hired by the state government hears and determines if the other bureaucrats are right in bringing the charges. So the ALJs are not independent finders of fact, like a regular judge, the ALJ, the investigators, and the prosecutors are all hired by, and work for, the same employer. The state government is the judge, jury and executioner. An ALJ rarely goes against the bureaucracy that hired them. The entire process is biased against the individual who finds the full weight of the state government levied against them.
And, if the ALJ doesn’t toe the line and protect the individual from the overreach of the government, the entire matter will go to the politically appointed State Bar board, who has the power to just ignore the ALJ and exact whatever punishment they wish. The government walks into the process with four aces, and the individual literally has to pull a royal flush to save their license and their ability to make a living. There are times when government action is warranted, like the Girardi case (and, of course, the state didn’t act because Girardi had political connections), and other times when the state action is an abuse of the state’s power.
The Bar is not protecting the public in this matter. Eastman acted as any good lawyer would. He gave his client the options available to that client to right a wrong. That’s what lawyers do. Sometimes, if they are the ACLU or some other left wing organization, they invent rights out of thin air, and sue the government based on those inventions. They don’t get disbarred or disciplined for making up the law, even if they lose the lawsuit. If the advice in this matter had come from the ACLU or some other left leaning legal think tank, the left would be praising its originality of thought and research. The fact that it came from a conservative to guide the efforts of a conservative president to correct a perceived electoral wrong allows the left justify the inappropriate exercise of government power.
Eastman and I have had our disagreements about the meaning of the Constitution and the law in the past, but those are disagreements where both of us had an opinion about what the law said and its application. That’s what lawyers do for their clients, and that’s what Eastman did for the Trump campaign. Attempting to discipline him for expressing his legal opinion is simply wrong, and will deter future lawyers from giving their clients the best advice they can, if that advice is politically unpopular. The State Bar, if it really cares about a healthy legal profession, should terminate this proceeding immediately. State Bar proceedings should not be driven by politics, even if the opinion is one with which the Bar disagrees.