The conservative California lawyer John Eastman has a long history with the Supreme Court. After graduating with honors from law school in 1995, he clerked for Justice Clarence Thomas. As a law professor, he established the Center for Constitutional Jurisprudence, the legal arm of the conservative Claremont Institute; authored dozens of amicus briefs and petitions; and successfully argued a case holding that individuals have no right to police enforcement of restraining orders.
In 2020, he returned to the Court: this time as one of President Donald Trump’s lawyers seeking to overturn the results of the presidential election. For this and other misconduct related to the 2020 election, he was disbarred in April from the practice of law in California.
He is now back asking the Justices to restore his license. He claims the First Amendment protects him from discipline and that he is the victim of barfare: punished by partisan officials who “politicized bar disciplinary proceedings” against him for simply doing his job.
In reality, this is the exact opposite of what happened—and why accepting his case would be a dangerous step toward weakening professional independence.
Rather than stopping the California bar from “chilling attorneys on the ‘wrong’ side” of power, as Eastman argues, a ruling in his favor would give a green light to current Trump lawyers to continue their campaign against the independent bar, which has included attacks on lawyers for representing clients the president dislikes.
Appreciating the danger posed by Eastman’s case requires returning to the facts of what he said and did—facts that are absent from his petition before the Supreme Court. This omission is not accidental. Eastman, it appears, is trying to rewrite history by repackaging his effort to overturn the election as standard “legal advice and advocacy” on “a hotly debated matter.”
In truth, there was nothing standard about his advice and advocacy because there was nothing to debate: Joe Biden won the election in 2020. Instead of accepting that fact, Eastman—acting as the president’s lawyer—repeatedly presented false and misleading information alleging illegal state conduct and voting fraud—in courts, memos for the president, and public statements—to support an extraordinary bid to undermine the centerpiece of American democracy: free and fair elections. The facts recounted below are supported by the detailed record that emerged in Eastman’s disbarment proceedings based on Eastman’s own words from trial, legal briefs, memos, and government hearings.
Fabricating Fraud for the “January 6 scenario”
Eastman made his first court appearance on behalf of Trump in early December 2020, after casting doubt on the Georgia results at a legislative hearing convened by Trump allies—even though the Republican Secretary of State Brad Raffensperger had announced a day before that a recount had shown “no substantial changes” in the vote tally.
Raffensperger’s announcement added to a mountain of evidence that the election results were valid—evidence confirmed by Trump’s own Department of Justice and cybersecurity agency, and coming as the president and his allies failed to prove otherwise in roughly 50 lawsuits across the battleground states, including the frivolous “Kraken” lawsuits brought by Sidney Powell.
Eastman nevertheless filed a motion to intervene in Texas v. Pennsylvania, a case brought by Texas Attorney General Ken Paxton, arguing that state election law changes constituted “rampant lawlessness” that he claimed affected “outcome-determinative numbers of popular votes.” There was no evidence for this assertion.
Despite Paxton’s unsupported claims, apparent to any reasonable lawyer, Eastman’s motion chose to simply parrot them, adopting “by reference” the facts in Paxton’s complaint and alleging that election officials “made a systematic effort to weaken measures to ensure fair and impartial elections by creating new rules . . . never approved by the legislatures,” which were “drastic and fraud-inducing.” Eastman further asserted a pre-election settlement in Georgia was an “unconstitutional change” that had a “material impact on the outcome of the election,” omitting adverse rulings even though he was apparently closely tracking them. The Supreme Court declined to hear the case on December 11.
Undeterred, 10 days later, Eastman followed the same playbook in another petition to the U.S. Supreme Court, Trump v. Boockvar, challenging three previous decisions by the Pennsylvania Supreme Court, all decided exclusively on state law grounds, by repackaging them as federal violations. One case on signature verification, which was decided in a unanimous vote before the 2020 election, had been included in the Texas complaint. None of these decisions was appealed to the Supreme Court at the time.
It was not until well after the election, when the Supreme Court rejected the Texas complaint, that Eastman stepped in to launch a Hail Mary appeal. As he had in the Texas case, Eastman again made the unsupported assertion that Pennsylvania’s illegal conduct changed the results: “over 110,000 invalid ballots were illegally counted—more than enough to have affected the outcome of the election.”
With this dubious petition “pending,” Eastman turned his attention to the next part of the scheme: crafting a legal theory that would undermine certification of Biden’s Electoral College victory. This he did in legal memos for Trump on the “January 6 scenario.”
The first memo, written just before Christmas, asserted that “7 states have transmitted dual slates of electors to the President of the Senate”—failing to note that in each case one of those slates (for Biden) was legal and the other (for Trump) was not. Eastman then casually rejected over 100 years of settled legal understanding to claim that the Electoral Count Act of 1887 was “likely unconstitutional,” leading to “the scenario we propose”: for Vice President Mike Pence to “break” with the Act to announce that “because of the ongoing disputes” in battleground states, “there are no electors that can be deemed validly appointed …. Pence then gavels President Trump as reelected.”
This was an explicit recommendation, made without qualification, that Pence nullify valid Biden electors and call the election for a candidate who had lost.
Manufacturing “Ongoing Disputes” to Justify Fake Electors
The legal fulcrum of Eastman’s memo was that Trump electors had legitimate legal status based on “ongoing disputes.” The problem was that these “disputes” were failing in spectacular fashion.
In an effort to potentially keep the plan alive, on New Year’s Eve, Eastman and local co-counsel Kurt Hilbert filed yet another lawsuit, Trump v. Kemp, this time in federal district court in Georgia. This was the 11th case challenging the Georgia results, including two unsuccessful challenges by Kraken lawyer Lin Wood.
Prior to filing the complaint, Eastman admitted some of its allegations were inaccurate, leading Hilbert to insert a convoluted footnote stating that client Trump had “not sworn to any facts under oath.” While that statement was intended to inoculate the president, it could not save the lawyers, who were legally obligated in signing the complaint to certify that their “factual contentions have evidentiary support.”
With this final lawsuit in place, just a week before January 6, Eastman made a last push to derail certification by transforming Congress’ ceremonial counting role into a vehicle for electoral subversion.
On January 2, 2021, Eastman went on Steve Bannon’s War Room podcast, where he again made the case for outcome-determinative fraud:
What we have here is massive evidence that this election was at least conducted illegally. . . . lots of evidence . . . that as a result of that illegal conduct, removing checks against fraud in the absentee ballot process, that we have absentee fraud more than enough to have affected the outcome of the election.
The next day, Eastman circulated a revised version of his “January 6 scenario” memo now describing how Pence could take the extraordinary step of refusing certification based on conditions that Eastman had played a key role in manufacturing.
Papering over his role, Eastman enumerated a list of allegedly “Illegal conduct by election officials,” which repeated his mantra that “important state election laws were altered or dispensed with altogether in key swing states,” with the “more significant violations” headlined by the two cases from Pennsylvania and Georgia brought by none other than Eastman himself.
Eastman then turned to what he called “War Gaming the Alternatives,” considering a new scenario absent from the first memo and the only one compelled by the Constitution: follow the law, resulting in “BIDEN WINS.” Rather than stop with the legal alternative, however, Eastman proposed illegal ones as if they existed on the same plane, including that Pence refuse to count contested slates (“TRUMP WINS”) or delay the vote to permit an “investigation” that the states had in fact already conducted and some 50 court cases had failed to disturb—making Eastman and his client two of the only people who continued to believe otherwise. The coda made clear that Eastman was proposing a dubious path: “BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”
Eastman made the closing argument for this position in his final star turn at the Ellipse on January 6: “Look, we’ve got petitions pending before the Supreme Court that identify it, chapter and verse, the number of times state election officials ignored or violated the state law in order to put Vice President Biden over the finish line.” Eastman then crossed entirely into the realm of conspiracy: “We know there was fraud. . . . We know that dead people voted,” and “we now know . . . how the machines contributed to that fraud.”
A Petition on Free Speech Devoid of Eastman’s Own Speech
Remarkably, Eastman’s Supreme Court petition to reverse his disbarment addresses essentially none of this history. Instead, it asks whether “disbarment of an attorney for legal advice, public commentary, and constitutional advocacy on matters of public concern is incompatible with the First Amendment.” That framing prejudges the answer by recasting what Eastman did as routine lawyering—when it was lawyering unlike any the nation had ever seen.
Eastman’s petition performs the very misrepresentation for which he received bar discipline, incorrectly objecting that he was punished for his protected “public commentary” as an ordinary citizen. This is not only wrong on the facts—it is wrong on the law. Knowing and reckless falsehoods integral to criminal conduct, including false statements to courts and government officials to overthrow an election, are not protected by the First Amendment. And Eastman’s public statements were never freestanding political commentary. They were legal advocacy for a client—the public face of an integrated legal campaign in which Eastman was acting, as the California State Bar hearing judge correctly concluded, in his “professional capacity as attorney for President Trump.”
Eastman objects that the bar court did not “identify the particular speech at issue,” but that is precisely what it did, walking through his statements one by one and matching each Eastman assertion against objective evidence of what actually happened and against what Eastman himself knew. And even if some of his public statements were protected, the result would not change, a point that the bar review department made explicit: “Eastman misled two courts, including our nation’s highest court. This conduct alone warrants serious discipline.”
The hearing judge’s documentation of Eastman’s misrepresentation to the courts after the 2020 election confirms this point. Defending his allegations in Texas v. Pennsylvania, Eastman insisted that he had never actually asserted there was evidence of outcome-determinative fraud (even though he adopted the Paxton allegations, which did)—only evidence of illegal rule changes that made fraud more likely on a scale itself likely to change the result (an argument he reprises in his Supreme Court petition). That chain of inference, which the hearing judge called an attempt “to finesse a discussion about fraud,” was dubious even under Eastman’s own hair-splitting logic since his assertion of illegal rule changes creating conditions likely to affect the result was itself a factual claim without basis. Moreover, Eastman falsely claimed that the Georgia settlement had a “material impact on the outcome of the election” and omitted the fact that a federal court had already concluded that the change did “not override or rewrite state law.”
The hearing judge likewise concluded that Eastman misled the federal court in Trump v. Kemp by incorporating allegations of dead people voting and suitcases of ballots that were false. Eastman argued that he had a “reasonable and good faith belief” because he relied on co-counsel Hilbert, but the hearing judge correctly found that this claim was contradicted by Eastman’s own email to Hilbert (prompting the footnote by Hilbert), in which he “strongly demonstrate[d] knowledge of the falsity of the allegations, otherwise such a footnote would not be needed.”
The California State Bar court also properly concluded that Eastman’s assertion that there were “dual slates of electors” was “false and misleading” because “Eastman knew that there were no legitimate dual slates of electors in the seven contested states because the Trump electors lacked certification.” The hearing judge found “unbelievable” Eastman’s claim that he held a good faith belief that Trump slates of electors were legitimate “as a matter of historical precedent” and rejected his reliance on Hawaii in 1960, where the slate ultimately counted had been certified by the governor after a court-ordered recount.
Alternatively, Eastman suggested that the memos—even if they were inaccurate—could not have deceived anyone (and therefore he could not be sanctioned for misrepresentation) because his client knew the Trump electors were not certified. But that defense proves too much. If everyone knew the electors were fake, then the memos would not have been operating as legal analysis at all but rather as a cynical paper trail designed to give a veneer of legality to an unlawful plan. Eastman cannot have it both ways. Either the memos meant what they said, in which case they contained false statements, or they were tantamount to a sham, in which case they were instruments of crime.
Perhaps because Eastman’s arguments on the merits of the First Amendment are weak, his petition reaches for higher legal ground, arguing that the bar misapplied the legal standard: swapping strict scrutiny for a “deferential professional-discipline framework” by asking what a reasonable attorney would have known. But that conflates two standards that the bar kept analytically distinct, using the objective standard to assess whether Eastman had any reasonable basis for his statements—not to relieve the state of its burden to justify sanctioning speech under strict scrutiny.
Finally, Eastman tries to argue that because no federal court sanctioned him, the bar had no authority to act—now recast as a jurisdictional claim under an 1890 case, In re Loney. But that is not how lawyer discipline works. Courts often decline to sanction lawyers because of the time and expense involved, which is precisely why bars exist, and the hearing department properly rejected the idea that discipline must await a court sanction.
Taken together, the bar courts’ decisions stand for the proposition that improper means—predicated on systematic falsity—in service of an extraordinary end—electoral subversion—cannot be passed off as zealous advocacy. As the hearing department put it: “While attorneys have a duty to advocate zealously for their clients, they must do so within the bounds of ethical and legal constraints. … Vigorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law.” The review department emphasized that Eastman’s lies as a lawyer sought to undermine the very foundation of the rule of law: “In a democracy nothing can be more fundamental than the orderly transfer of power that occurs after a fair and unimpeded electoral process as established by law.” “Disbarment,” it concluded, “is necessary to protect the public, the courts, and the legal profession.”
Punishing False Statements During Representation, Not Ideological Beliefs
An amicus brief filed on Eastman’s behalf by First Amendment scholars disagrees.
Strikingly, this brief defending speech does not quote anything that Eastman actually said. Rather, its argument turns on broad warnings that bar discipline against a lawyer who happens to be political will inevitably produce politicization: provoking retaliatory “tit for tat” disciplinary weaponization from “deep blue state bars and deep red state bars” against lawyers who do not share their views.
This false equivalence—that the bar should refrain from disciplining Eastman just because he is on the right to protect similar lawyers on the left—collapses critical distinctions, namely, that some politically driven lawyers actually deserve sanction for lies harming democratic institutions. The lawyers (cited in the brief) representing communists during the McCarthy era were targeted because of their clients’ ideological beliefs not because of false statements harming legal proceedings and governmental functions.
The amicus brief inaccurately defines its target to make it easier to knock down, stating that Eastman was “disbarred in large part based on his public political statements,” when in fact his disbarment rested heavily on Eastman’s actions taken on behalf of his client: advocacy in court, advice in memos, testimony in public hearings, and advocacy to the vice president’s counsel.
That misdirection is the basis for the brief’s broader effort to frame Eastman-the-Trump-lawyer as Eastman-the-“ordinary citizen,” whose words would be protected “even if they were knowingly false,” and deserve particular solicitude because they related to “matters of public concern.” Like Eastman’s own petition, this reframing misstates the law and obscures the fact that Eastman was never speaking in public as an ordinary citizen: he was serving as Trump’s lawyer making his closing argument that the election was tainted by fraud. This representation did not simply touch on a matter of “public concern,” it sought to undermine a bedrock public function: the certification of a presidential election. This is the farthest one can get from “classic political commentary” on “the great political and legal debates,” as the brief weakly suggests.
The amicus brief goes on to suggest that Eastman “had a right to make the argument that certain government processes failed to properly determine those results,” which is true in the abstract but misses the point that any such arguments must be predicated on genuine evidence of failure—evidence that was wholly absent in Eastman’s case.
The brief further argues that “intertwined” statements sanctioned “without elucidation” of the distinct rationale for each negates the entire sanction. But that is not what the California bar did. To the contrary, it methodically reviewed each statement and determined its falsity. And even though the bar courts imposed a single sanction “with no separate sanction indicated for each count,” both the hearing and review departments made clear that the sanction did not depend on aggregation. Each applied the Standards for Attorney Sanctions for Professional Misconduct, which direct the court to impose “the most severe” sanction applicable to any single act of misconduct, and each found that under those standards “[d]isbarment or actual suspension is the presumed sanction for an act of moral turpitude” or for misleading a court.
The brief concludes with the cliché that the “best test” of false speech is “counterspeech and free public debate.” But this principle is belied by the evidence. Years later, more than a quarter of Americans and half of Republicans still believe the 2020 election was rigged, a falsehood Trump continues to promote in service of what some fear will be further election interference. More speech has not cured election lies. It has entrenched them.
Through the Looking Glass
To read the Eastman petition is to enter an alternative reality, where one encounters a humble lawyer doing his job, sticking up for an unpopular client against partisan foes bent on “censoring” his arguments. In this upside-down world, Eastman’s extraordinary campaign to certify illegal Trump electors becomes advocacy for “disputed legal positions.” His memo outlining the roadmap to that illegal end becomes “an internal brainstorming memorandum analyzing unsettled legal questions.”
Yet what Eastman’s petition lacks in substance, it makes up for in moral outrage. It claims to champion the principle that lawyers must be free to advocate for clients “without fear that the State will later punish those attorneys for making disfavored arguments,” warning that if his disbarment stands, “every lawyer who represents an unpopular client, presses a contested theory, or petitions government officials in a politically charged matter will practice under the shadow of professional ruin.” It likens California’s decision to disbar him to China’s persecution and Uganda’s detention of human rights lawyers. And it casts Eastman as an heir to NAACP lawyers punished by racist southern bars.
These are more false equivalences. Unlike human rights lawyers, Eastman was serving authoritarian power, not resisting it. And unlike NAACP lawyers enforcing the Constitution, Eastman was helping a defeated president defy it.
The irony of the petition’s claim to carry the banner of bar independence cannot be lost on Eastman or his Supreme Court lawyer (and former Trump impeachment counsel), Jay Sekulow, both of whom represented a president who has made it a hallmark of his second administration to bully the independent bar into submission.
Trump has done this by purging career prosecutors from the Justice Department, issuing executive orders punishing law firms for the clients and causes they represent, threatening lawyers with sanctions for asserting legal rights of immigrants, indicting one legal organization, and targeting the tax-exempt status of others. Tellingly, the petition invokes this year’s Supreme Court “conversion therapy” decision in Chiles v. Salazar for the principle that the speech of licensed professionals deserves strict scrutiny—but never mentions the four federal judges who struck down Trump’s law firm orders as unconstitutional viewpoint-based retaliation under that very standard.
This is where the Eastman petition is at its most dangerous.
The lawyers with the most to gain from Eastman’s petition are not dissidents representing unpopular clients. They are the lawyers who now run the Trump Department of Justice. Each of Eastman’s arguments—that a lawyer’s “legal advice” and “constitutional advocacy” on political matters are beyond the bar’s reach and that discipline of conservative lawyers is presumptively partisan—mirrors what the department is now arguing to escape accountability for its own abuse: dropping prosecutions for political cooperation, pursuing indictments of Trump’s enemies, deporting immigrants without due process and defying court orders, authorizing missile strikes killing people on alleged drug boats, and the list goes on.
Against this backdrop, it is no surprise that DOJ has proposed a rule that would let the attorney general request the suspension of investigations of Justice Department lawyers, despite a federal law requiring them to follow state ethics rules. Its justification—that “political activists have weaponized the bar complaint and investigation process”—is the precise charge Eastman levels at the California bar.
This same pretext is at the core of the DOJ suit against the D.C. Bar to stop it from disciplining another 2020 lawyer, then-DOJ civil chief Jeffrey Clark, for pressuring superiors to send a letter—three days before Eastman’s Georgia lawsuit—advancing the very false narrative of election fraud that Eastman promoted. The DOJ suit against the D.C. Bar was submitted by then-Acting Attorney General Todd Blanche, who is himself under ethics scrutiny for his role in creating the $1.8 billion “Anti-Weaponization Fund,” as are more than a dozen other current or former Justice Department lawyers.
Eastman’s petition cynically warns that disciplining him “imperils the independence of the bar” when the opposite is true. A ruling in his favor would give Trump’s lawyers exactly what they want: a constitutional shield against state bars like California’s that remain one of the few democratic bulwarks still standing.
