An unprecedented, rule-bending process gets used against only one side of the aisle. What could go wrong?
An unprecedented, rule-bending process gets used against only one side of the aisle. What could go wrong?
O n April 15, the California Supreme Court upheld the order disbarring John Eastman over his role counseling Donald Trump in the 2020 election contest. Eastman, the founder of the Claremont Institute’s Center for Constitutional Jurisprudence and an active constitutional litigator, can no longer practice law in his home state and faces collateral consequences in federal court and other jurisdictions.
The California Supreme Court’s order, issued without a written opinion, concluded a long-running battle launched by the state bar disciplinary authorities at the urging of anti-Trump political groups. Eastman’s attorney has vowed to fight on to the U.S. Supreme Court on the theory that his First Amendment and due process rights have been violated, but he would face steep legal obstacles to doing so in light of the primacy of state law in this area and the importance of factual findings in this sort of case.
This is wrong. And that’s not a defense of Eastman, whose course of conduct throughout the 2020 election contest richly deserved public condemnation for departing from the ideals of the bar. I dismantled his arguments at the time and have continued to do so. As I wrote in September 2021:
Taken as a whole, Eastman’s memo reeks of the kind of advice you give a client when you start with the conclusions and have to backfill your way through a long series of insurmountable obstacles. This is not what good lawyers should do.
I was critical, in November 2020, of efforts to harass qualified and respected lawyers away from representing Donald Trump in his post-election challenges. In addition to the general assault that represented on the ideals of the legal profession, there were two bad consequences that could, and did, flow from those attacks. One, there is value in showing the voters that a disgruntled candidate has had his day in court to prove his grievances. Bottle up that anger, it turns toxic. Two, if you drive out good lawyers from representing an irresponsible client, bad ones will rush in and impose fewer constraints on what the client does. Instead, the better path is to see what lawyers actually do when representing an unpopular client with a flimsy case. If the lawyers themselves misbehave, they can then be held to account.
Professor Eastman ought to face that now. At a moment when he stood between responsible people doing the right thing at political cost and hacks and shysters peddling conspiracy theories, he sided with the latter. In doing so, he helped bring on a totally unnecessary constitutional crisis and a literal riot — all to the detriment of the causes to which he has dedicated his career. That is a sad journey.
So I have no quarrel with the concept that Eastman should face some public and professional consequences for legal hackery. But in the law, process and precedent matter. If we take professional standards, the rule of law, and free political speech seriously, that means applying the rules evenhandedly and with some sense of proportion. A law that is applied only to one’s enemies isn’t a law; it’s a leash.
When you look at the actual basis for disbarment in Eastman’s case, the nuclear-level professional sanction of stripping Eastman of his law license is plainly politically motivated, departs in dangerous ways from how the bar has typically deployed its disciplinary authority, and reflects a serious misunderstanding of the competence and democratic legitimacy of the bar authorities. As I’ll discuss below, some of the charges against Eastman are not appropriate topics for the most serious forms of bar sanction, while others are procedurally not suitable for a bar disciplinary hearing.
Barfare
The issue of what Ben Weingarten has dubbed “Barfare” isn’t confined to Eastman and reflects a deliberate strategy by Trump opponents. The bar authorities in D.C. have gone after Rudy Giuliani; other Trump attorneys such as Jenna Ellis, Lin Wood, and Sidney Powell have faced varying levels of bar discipline. Some of them, notably Wood and Powell, did things deserving of severe professional sanction, but they were far more directly involved in misrepresenting the facts to the courts of the state that punished them. In Eastman’s case, there’s been a pattern of ominously overbroad arguments made to invalidate the usual defenses of lawyer-client relationships.
Jeffrey Clark, also in the D.C. Bar’s sights over actions involving the 2020 election contest, is presently appealing to the D.C. Court of Appeals to stop a bar proceeding against him, which in Clark’s case is additionally complicated by the fact that the bar is after him for conduct undertaken as an assistant attorney general in the Department of Justice. While this is another day’s argument, that raises issues of federal supremacy that date back to the 1989 Thornburgh memorandum and arise as well in the D.C. Bar’s more recent pursuit of Ed Martin.
Weingarten detailed the origins of the Eastman case:
The caper appears to have been instigated by the States United Democracy Center, a key cog in Trump resistance efforts led by Norm Eisen. It filed a complaint with the state bar against Eastman in October 2021, alleging his work in connection with the president’s 2020 election challenge constituted professional misconduct. Months later, in January 2023, the bar responded, issuing an 11-count set of disciplinary charges against Eastman. . . .
As Weingarten has observed, all of these proceedings are part of a wider campaign including “The 65 Project [a] so-called ‘dark money’ outfit . . . launched in the wake of the 2020 election to ‘shame’ lawyers who represented President Trump in some 65 lawsuits challenging the election and ‘make them toxic in their communities and their firms,’ according to Democrat operative David Brock, founder of the partisan watchdog group Media Matters, who is one of the group’s advisers.”
Notably, if one reviews the States United Democracy Center’s letter of complaint against Eastman, not only was it not filed by Eastman clients, adversaries, or anyone directly affected by his legal practice, more than half of the signatories are from outside of California — a state in which none of the election cases were filed. That’s not any sort of formal jurisdictional bar, but as we shall see, it does matter.
Why We Have Professional Rules
In considering the ethical charges against Eastman, it is worth considering exactly why we have rules of professional conduct that allow organizations of professionals, backed by the power of the government, to discipline and even expel members of their profession. The central purpose of such rules is to protect clients from unscrupulous practitioners who may exploit the ignorance of the public about the professional judgment of their lawyers and the fiduciary position of those lawyers in handling the money and confidences of their clients.
In many of the professions, that’s all there is. Doctors or counselors are licensed almost solely for the purpose of protecting their patients. That concern is mostly absent in Eastman’s case: While he fed Donald Trump legal theories that Trump was ill-suited to evaluate, fundamentally, the sin of Eastman and other Trump lawyers was not that they exploited Trump but that they allowed Trump to exploit them.
Now, lawyers have a broader obligation. Doctors or builders practice a private trade, into which the government inserts itself for reasons of public protection. But lawyers gain their power directly from their relationship with the powers of the government. Lawyers can file lawsuits, issue subpoenas, invoke judicial power to hand down temporary restraining orders, and make allegations in court filings that are privileged from the laws of defamation. Because of that, lawyers aresubjected to ethical obligations not to abuse their powers. The civil lawsuit against Giuliani for smearing Georgia election workers is a good example of how the law can sanction lawyers for harming innocent civilians.
But the great majority of disciplinary cases, especially ones leading to disbarment rather than some lesser sanction, involve abuse of clients — usually by stealing their money. It is almost cliché among lawyers that the one and only thing that gets you disbarred is taking the clients’ money. It is extremely unusual to disbar a lawyer entirely for overzealously representing his clients, and to do so without citing a single example of how the lawyer caused harm through the legal process to any particular person. That’s the Eastman case.
In fact, consider the discussion of the harm caused by Eastman in the 103-page opinion of the bar’s review department that was issued in June 2025 — the last written opinion in the case, and thus the closest we have to a legal analysis of the grounds for disbarment — the review department stated:
The waste of precious judicial resources on cases premised on false narratives, especially when an attorney knew the allegations were false, is a harm that must be considered even if it does not equate to aggravation. . . . There is a distinction with a difference between hard-fought cases premised on actual facts and cutting-edge legal theories and those cases pushed forward based on, at best, mere speculation and a disingenuous take on the law.
And yet even that opinion found that “the record does not support aggravation for significant harm,” because the “evidence offered in support of aggravation for significant harm was speculative, and . . . did not prove Eastman was the cause of the harm.” The opinion found that “misinformation about the 2020 election was rampant and consequentially resulted in a loss of confidence in the election process, but Eastman was just one of many who amplified this misinformation,” and “the January 6 assault cannot be directly attributed to Eastman.” As to the court cases, “the record does not reveal specific evidence that considerable court time or resources were expended due to Eastman’s misrepresentations.”
Arguing Law and Politics
Broadly speaking, Eastman was charged with four types of professional misconduct. The first two and the second two present different problems.
The twin centerpieces of the charges against Eastman, and the focus of much of the commentary defending him and arguing for the Supreme Court to step in, were that he made unsupportable legal arguments (in memos advising Trump and his campaign, and in legal briefs he drafted or influenced with his advice), and that he lied about the 2020 election in public speeches. The very first count in the bar’s complaint against Eastman was “Failure to Support the Constitution and Laws of the United States.”
These are dubious bases to disbar a lawyer, for a couple of related reasons. The most glaring is that not one single person on planet Earth believes that the California Bar authorities would use either of these as a basis to disbar an attorney for spreading stolen-election theories, making absurd legal arguments, or lying in or out of court about the law in the service of Democratic politicians or left-wing causes. The only vaguely comparable case cited in the review department’s opinion was that of Watergate figure Donald Segretti — a Republican, of course — but Segretti was convicted of multiple federal crimes.
Perhaps baroque and preposterous legal theories should get lawyers disbarred, or at least sanctioned; we might have a more ethical bar if they did. But it’s extraordinarily rare to see such things cited as a justification. Sometimes, legal theories that have no basis whatsoever end up being adopted by the Supreme Court and celebrated as progressive milestones. Eastman’s arguments were no more ridiculous than those of the majority opinion in Obergefell v. Hodges. And lawyers making arguments that fly in the teeth of precedent can be a necessary engine of legal change: As Professor John Yoo argued in his testimony in Eastman’s support (in spite of Professor Yoo’s profound disagreements with Eastman’s arguments), Jim Crow-era Southern bars could have disbarred Thurgood Marshall for challenging the long-settled Plessy v. Ferguson precedent. In Eastman’s case, he was making novel arguments that had never before been accepted by courts or Congress — but they’d never been squarely rejected, either. And the fact that some of those arguments were directed not to courts but to decisions reserved to Congress or the vice president is further reason why state bar authorities were out of their depth here.
It’s even more alarming to disbar an attorney for making political speeches, no matter how dishonest — again, given how rarely that power is exercised. Eastman could validly be punished and even criminally convicted within the First Amendment if he had incited imminent, lawless action on January 6 — but the bar didn’t even claim that his conduct met that standard. The Supreme Court’s decision in Chiles v. Salazar, while arising in a much different context, is a reminder that professional licensing rules are not a loophole in the First Amendment: “The First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. . . . Whatever traditional interest a State may have in ensuring a professional possesses a particular set of qualifications, that interest does not automatically entail a right to dictate a professional’s point of view.”
If these two grounds were the sole basis of the disbarment decision, Eastman might well have a legal case to get the Supreme Court’s attention. He does, however, have a problem: As a former law clerk for Justice Clarence Thomas, he may have one less vote to work with, because Thomas might well feel compelled to recuse himself from any petition. Thomas has ignored many poorly grounded calls for recusal in the past, and the justices do hear cases argued by their former clerks and cases arising from their former clerks’ public offices. But a case so personally revolving around a former clerk’s punishment would raise a more serious recusal issue.
In any event, the other two categories of charges against Eastman make federal law review of the case more challenging.
Stubborn Facts
The other two sets of charges against Eastman are that he misled the courts about the evidence and that he misled them about the status of election cases. These are, to my mind, much more serious charges that can, in a proper case, be a basis for bar discipline and even disbarment. And the review department seems to have recognized that building a record on these charges was necessary to insulate its decision from challenges to the headline charges. But there are other problems.
As I argued during the Trump prosecutions, it’s entirely legitimate to bring criminal charges for submitting false sworn statements to a court, whether as an attorney, a party, or a witness. We prosecute perjury, after all — even Bill Clinton got his Arkansas law license temporarily suspended for perjury. It was Trump’s good fortune that so few of the charges involved him doing anything like that, and in Georgia, the one charge of Trump personally verifying a false pleading was thrown out because it involved a filing in federal court and, under the Supreme Court’s decision in In re Loney (1890), “the power of punishing a witness for testifying falsely in a judicial proceeding belongs peculiarly to the government in whose tribunals that proceeding is had.” (Notably, in spite of this doctrine, several of the disciplinary charges against Eastman relate to filings in federal court, but disbarment is arguably not “punishment” in quite the same legal sense.)
The overall picture of the briefs filed or endorsed by Eastman is damning, and as I said up front, we should not whitewash that. Lawsuits were filed and pressed forward on the basis of vague theories that kept shifting to new ground every time the original claims couldn’t be proven. Eastman and his colleagues played fast and loose with candidly informing the courts of the status of all of their cases.
There are a few mitigating factors in Eastman’s case: It was a fast-moving, multistate election dispute, and unlike Wood or Powell, as a constitutional scholar, he was clearly more responsible for legal arguments than for developing the evidence, which was handled largely by local lawyers. In some cases, Eastman was charged by the bar merely for endorsing things that other people had already filed. The review department quite properly found that this is not a complete defense: Lawyers are still responsible for the filings they sign, even if somebody else did the work. But it surely ought to weigh more heavily on the question of the degree of punishment for a lawyer who had no prior disciplinary record and would be likely in the future to do mainly the legal rather than factual work.
The more serious problem here is that not one of these cases was filed in California, Eastman was never sanctioned by any of the courts he actually appeared in, and no charges were ever proven in court against him. That left the California Bar authorities in the position of trying to reconstruct and second-guess the evidentiary record and the impact on other courts of proceedings across the country, years after the fact. Even with an unprecedented 34-day trial, Eastman raised many complaints about being denied due process in not getting to call all the witnesses he wanted.
Due process is a relative term — the courts have recognized that the process that is due varies by the nature of the proceeding — and Eastman was given more process than perhaps any respondent in a bar discipline hearing in American history. But there is a reason why the first line of defense against unscrupulously overzealous lawyers is a motion for sanctions before the judge hearing a case: That judge has full access to the record and a fresh sense of what harm was or wasn’t caused by an attorney’s unethical conduct or sharp practices. On the other hand, when a lawyer is criminally prosecuted, there are much more rigorous protections to ensure that the jury hears every available defense. The use of barfare to relitigate cases far from where they were filed and heard looks like a deliberate effort to circumvent both types of protections.
When politically driven processes are used in politically biased ways, there is supposed to be an ultimate recourse to the voters. Prosecutors and those who appoint them can be run out of office. But that’s the nefarious thing about barfare: The bar discipline system never answers to the public. (And even when blue-state lawyers get a say, they are apt to endorse the politicization of discipline, as they did in the recent D.C. Bar election.) Eastman was accused of doing harm in other states and jurisdictions and hauled in front of a tribunal that answers to nobody accountable to the voters.
John Eastman is not a pure, innocent victim here. He could and should have been slapped with valid sanctions for misleading the courts. What he has done to his own reputation ought to be a cautionary tale. But the effort to drive him entirely out of the practice of law should be a cautionary tale, too.