Jurisprudence

The Lawyer Behind Trump’s Infamous Jan. 6 Memo Has a Galling New Defense

A noose hanging on a makeshift gallows in front of the west side of the Capitol on Jan. 6
John Eastman laid out Trump’s “legal options” on Jan. 6. Here’s what his supporters were working on. Andrew Caballero-Reynolds/Getty Images

As the California state bar considers whether to initiate disciplinary proceedings against John Eastman for his role in Donald Trump’s attempt to steal the 2020 election, the former dean of Chapman Law School has begun to mount a defense of his infamous legal memo on the “January 6 scenario.” In that memo, Eastman “war gam[es]” alternatives for allowing Mike Pence, in discharging his constitutional duty as vice president to count electoral votes, to discard votes from seven swing states, all of which had duly certified electors for Joe Biden at the time the memo was written. Just like the content of his memo, Eastman’s defense threatens to subvert democratic institutions and established legal principles, this time by wriggling out of his responsibility as a lawyer sworn to uphold the rule of law to provide legal advice in accordance with professional standards of rigor, honesty, and justice—standards enforced by the state bar. By now arguing—despite the written words on the pages that he himself authored outlining how to circumvent the law—that he orally counseled Pence to follow the law, Eastman seeks to avoid the bar’s authority to sanction lawyer misconduct based on documents providing improper legal advice. This defense, like the underlying advice, relies on misrepresentations that cannot go unchallenged.

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In his recent attempt to justify his memo, first revealed by Bob Woodward and Robert Costa’s book Peril, Eastman makes two claims, one of which seems to confirm his guilt, while the other advances an all-too-convenient alibi that ultimately fails.

First, Eastman suggests that the public outcry over his purported complicity in Trump’s “coup” attempt was based on bad reporting by the Washington Post and other outlets, which took statements from a preliminary version of his memo, not the “complete memo,” which Eastman says contains the “final scenario” he advised Pence to follow.

The problem is that the “complete memo,” to which Eastman hyperlinks, itself appears to constitute grounds for professional discipline. It contains several egregious inaccuracies about the electoral vote certification process in the swing states. After falsely asserting that “important state election laws were altered or dispensed with altogether in key swing states,” Eastman offers a list of “more significant violations,” included in which are false statements that Georgia refused to assign a judge to hear Trump’s election challenge, that polling observers were illegally barred in Michigan and Pennsylvania, and that Nevada ballot signatures were not correctly inspected. Notably, Eastman’s righteous defense of his memo conveniently fails to defend the veracity of these claims—because he cannot.

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More seriously, Eastman used these factual inaccuracies to lay out a menu of legally dubious options for Pence to circumvent the 2020 election results. Although the memo begins with the option of upholding Biden’s election by counting certified electors, its central focus is on options that result in “TRUMP WINS”—without anywhere analyzing whether one is more legally defensible than any other. Under the first “Trump wins” scenario, Eastman advises that Pence could “determine[] on his own” which ballots were valid and discard those from states where the “State Legislatures have not certified their own slates of electors … based on all the evidence and the letters from state legislators calling into question” the certifications. What Eastman fails to note is that state legislatures do not generally have legal authority to certify electors; that authority resides with executive officials, who had already certified electors despite numerous attempts by a few Trump stalwarts (and, in Georgia, by Trump himself) to prevent it. Perhaps recognizing this weakness, Eastman’s memo then sets forth an even more radical option: that Pence could simply reject certified electors from swing states outright based on “ongoing election disputes,” “throwing the election to the House,” where Trump would prevail. Again, Eastman conveniently fails to add that Trump had lost more than 60 lawsuits challenging the election (with only one trivial victory)—including cases that were rejected by federal appellate courts and ignored by the Supreme Court—while the only other “election disputes” were being advanced in state legislatures by pro-Trump conspiracists.

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In the “final scenario” (which Eastman now claims he recommended), the memo relies on this same subterfuge about the validity of “ongoing election challenges” to opine that Pence could adjourn Congress and delay the count until the challenges were resolved—presumably including challenges like the one recently completed in Arizona eight months after the Electoral College count, which actually added to Biden’s margin of victory there. In a conclusion underscoring that the memo was never really about providing sound legal advice based on the truth, Eastman concludes: “BOLD, Certainly. But this Election was Stolen by a strategic Democratic plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules, therefore.” In other words, by falsely claiming the Democrats were cheating, Eastman suggests Trump should cheat too.

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There are four fundamental problems with the memo from the standpoint of a lawyer’s professional responsibility to follow the rules of ethical conduct set forth by the state bar:

First, it is egregiously bad lawyering, making inaccurate claims about the factual record and twisting the 12th Amendment and Electoral Count Act beyond reasonable interpretation based on inapt precedent and misconstrued citations.

Second, it does not demonstrate independent legal judgment, as lawyers counseling clients are required to exercise, but rather presents a tendentious view designed to advance a predetermined end, which is prohibited. Lawyers counseling clients are required to explicitly tell them about the weaknesses and risks of proposed legal courses of action. They are not permitted to present unsupported options without judging their relative legal merits or spin facts and law when advising clients on how to act—yet that is precisely what Eastman’s memo did.

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Third, the memo counsels Eastman’s client, defeated President Donald Trump, on how to overthrow a legitimately elected President Joe Biden, effectively assisting his client to commit a public fraud in violation of core democratic rules protecting free and fair elections and the peaceful transition of power.

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And fourth, following the last point, it subverts the rule of law and administration of justice that Eastman, like all lawyers, is sworn to uphold.

In all of these respects, the Eastman memo calls to mind another infamous legal memo written by then–Office of Legal Counsel lawyer John Yoo, which authorized the use of torture in violation of international and federal law. The “Torture Memo” was found by the Department of Justice’s Office of Professional Responsibility to be so lacking in basic legal rigor that it constituted a failure to exercise independent professional judgment. By comparison, the Eastman memo makes the Torture Memo look like a paragon of legal reasoning.

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It therefore makes sense that Eastman would try to wriggle out with this second line of defense: that, while he wrote the memo, he ultimately told Pence orally, in the Oval Office, not to exercise all of the authority that the memo clearly stated Pence had. In Eastman’s account, he told Pence that it would be “foolish” for him to discard electors in the absence of state certification of “alternative Trump electors” and that, instead, he was advising Pence to “delay the proceedings at the request of these state legislatures so they could look into the matter.” This defense should not absolve Eastman from professional discipline by the bar.

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For one, the advice Eastman now admits giving was itself fatally flawed—since there were no legitimate challenges remaining and no state legislatures had requested that proceedings be delayed. In short, Eastman’s admitted advice advanced a legally frivolous argument, based on false factual claims, designed to advance a catastrophic result: overturning a legitimate presidential election.

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As seriously, Eastman’s self-defense takes a position that, if followed, would wreak havoc on the bar’s authority to discipline lawyers based on documented evidence of misconduct. By asking that the bar judge a lawyer’s written legal advice not based on what it explicitly recommends but rather on what the lawyer may (or may not) have orally stated in a client meeting, Eastman’s defense threatens the rule of law, both because it ignores the fact that lawyers have an affirmative obligation to ensure their legal opinions analyze options provided to clients, and because it would provide an all-too-easy end run around professional regulation.

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Indeed, the fact that Eastman now says he disclaimed the most egregious parts of his memo is evidence that he should not have written those parts in the first instance. Moreover, his defense constitutes a highly convenient alibi since the only ones in the room when Eastman allegedly called his own legal analysis “foolish” were Trump, Pence, and some of Pence’s aides. Eastman points to an aide’s statement to the New York Times as corroboration, but this too should be viewed with a massive degree of skepticism given the anonymity of the sourcing and that all parties involved, including Pence, benefit from the narrative being peddled.

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Ultimately, the bar should not lightly accept Eastman’s defense of his memo, which boils down to “I didn’t really mean it.” If that were enough to avoid professional sanction for a written legal product, then every smoking gun memo demonstrating lawyer misconduct could be waved away by the same convenient disclaimer that the advice on the page was not what the lawyer really meant to convey.

Eastman, of course, deserves due process at the bar, which will have to prove that he violated the rules by clear and convincing evidence. In my view, the memo speaks for itself in meeting that standard and justifying professional sanction. Don’t let Eastman’s addition of alternative facts obscure the real ones.

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