The Capitol mob didn’t come out of nowhere. It was a response to the concerted attack on 2020’s election results crafted by elite right-wing politicians, academics, and attorneys. No law professor played a bigger role in Donald Trump’s plot to overturn the election than John Eastman. As the president’s actual attorneys backed away from his coup, Eastman rushed in to fill the void, attempting to bolster the scheme with incoherent legal theories. When Texas Attorney General Ken Paxton urged the Supreme Court to overturn the election by nullifying millions of votes, it was Eastman who intervened on Trump’s behalf to endorse Paxton’s suit. When Trump exhorted Vice President Mike Pence to award him a second term by unilaterally disqualifying electoral votes, it was Eastman who advised Pence that he could, indeed, throw the election to Trump. And when Trump needed a putative legal scholar to lend credence to his pre-insurrection rally, he brought out Eastman to deliver a speech alongside Rudy Giuliani, ringleader of the president’s efforts to steal the election.
It is no surprise that Eastman, a white supremacist on the far-right fringe of the conservative legal movement, played a major role in the president’s failed coup. What is remarkable—and, with each passing day, extraordinarily damning—is the Federalist Society’s refusal to address Eastman’s role in the insurrection. Eastman is not only a member of the Federalist Society, the network of conservative attorneys that provided the legal scaffolding for Trumpism. He is the chairman of the organization’s Federalism and Separation of Powers practice group and a frequent participant in its public events. The Federalist Society’s refusal to expel, condemn, or distance itself from Eastman in any way indicates that the organization is untroubled by the subversion of American democracy.
Eastman has spent much of his career promoting blatant lies. He gained notoriety in August when Newsweek published his column questioning the citizenship of Vice President–elect Kamala Harris. Eastman argued that Harris may not be an American citizen—and, thus, may not qualify for vice president—because her parents had not become U.S. citizens when she was born. In reality, the Constitution guarantees beyond debate that the children of immigrants who are born in the United States become American citizens at birth. But Eastman has spent decades denying this fact, instead proposing the objectively false theory that these children do not receive birthright citizenship. His racist theory would require the government to strip citizenship from millions of Americans, most of them nonwhite, and subject them to deportation. (Newsweek later apologized for running his piece.)
Despite the partisan activities of its leaders, the Federalist Society purports to be a nonpartisan debate club. Eastman uses the organization to amplify his most noxious claims and launder them into ostensible legal scholarship. Less than one month before the 2020 election, for instance, he participated in yet another debate about birthright citizenship sponsored by the Federalist Society that allowed him to trot out the nativist falsehoods peddled in his Newsweek piece. The organization has not (yet) given Eastman an opportunity to spout Trump-approved conspiracy theories about election fraud in 2020. But it hasn’t expressed a word of disapproval about his participation in last week’s rally either—even though Eastman delivered arguably the most deranged speech of the day. He told the crowd that Democratic operatives put ballots “in a secret folder in the [voting] machines, sitting there waiting until they know how many they need” to “barely get over the finish line.” These operatives “match those unvoted ballots with an unvoted voter and put them together in the machine” to win. Eastman also turned his attention to Pence, shouting:
All we are demanding of Vice President Pence is … [that] he let the legislatures of the states look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not. We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump, it is the very essence of our republican form of government, and it has to be done. And anybody that is not willing to stand up to do it does not deserve to be in the office. It is that simple.
Later that afternoon, after Pence refused to “stand up and do it,” members of the crowd broke into the Capitol to halt Congress’ certification of the Electoral College votes. Some rioters were chanting, “Hang Mike Pence.”
Eastman also stood by Giuliani on stage when he declared, “Let’s have trial by combat!” As the words left Giuliani’s mouth, Eastman broke into a smile.
Other institutions affiliated with Eastman have criticized his efforts to overturn the outcome of a democratic election. He currently has ties to two schools: Chapman University, where he normally teaches, and University of Colorado Boulder, where he is a visiting scholar at the Benson Center for the Study of Western Civilization. Although both schools said they cannot fire him without violating policies protecting academic freedom, their leaders vocally denounced his actions. Daniele Struppa, the president of Chapman, said in a statement that “Eastman’s actions are in direct opposition to the values and beliefs of our institution.” He added that he had brought “humiliation” upon the school. A letter signed by 169 Chapman faculty and members of the Board of Trustees called on the university to discipline Eastman for his role in the insurrection. [Update, Jan. 13, 2021, at 10:08 p.m.: Eastman agreed to retire from Chapman on Wednesday evening.]
Phil DiStefano, chancellor of UC Boulder, went further than Struppa. Eastman, DiStefano wrote, “fanned the flames of disinformation and distrust, contributing to this mob.” His “continued advocacy of conspiracy theories,” DiStefano added, “is repugnant, and he will bear the shame for his role in undermining confidence in the rule of law.” The chancellor also noted that Eastman “has embarrassed our institution” and “contributed nothing of value to support the ideals of either the Benson Center or CU Boulder.” Daniel Jacobson, director of the Benson Center, also publicly criticized Eastman for raising “lurid allegations” and “irresponsible” claims of election fraud without evidence. Jacobson concluded with a stinging rebuke, writing that “this year has illustrated the danger of public figures, including public intellectuals, who make excuses for political violence or make public statements that exacerbate dangerous situations. There has been too much playing with fire.”
In response to these condemnations, Eastman insisted that he could back up his claims with evidence and pushed the soundly debunked conspiracy theory that antifa, not Trump supporters, instigated the insurrection. He described the criticism against him as “defamatory.” (It is not.)
The Federalist Society, in contrast to Chapman and UC Boulder, has made no official statement about Eastman’s involvement in the insurrection. Its leadership has not spoken out against him. Its members have not signed a letter denouncing his actions. Eastman remains chair of a Federalist Society practice group and, apparently, a member in good standing. (The organization did not respond to my requests for comment.)
Eastman also has ties to the Claremont Institute, which helps fund his legal work. Claremont, like the Federalist Society, has not distanced itself from Eastman. But the institute does not have a fraction of the Federalist Society’s power and influence in the legal world. It is, rather, a widely discredited fringe hate group that seeks to incite racist, nativist rage. The Federalist Society is a much more mainstream organization that serves as a gatekeeper of the conservative legal movement’s top ranks.
Trump drew nearly 85 percent of his appeals court judges from the Federalist Society. The group is now entrenched in American law and politics, and will be for decades to come. It could have used the Jan. 6 riot to draw a line in the sand: Leaders could have clarified that support for a coup falls outside the acceptable exchange of ideas and disassociated themselves with Eastman for his attempted subversion of the republic. By remaining silent, the Federalist Society has sent a clear message to conservative attorneys eager to ascend to the top ranks of their movement: Fomenting insurrection is not a deal-breaker.
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