Jonathan P. Baird

Previously I have written about the failure of lawyers and judges to respond to the growing threat of fascism in the United States. Very few lawyers who supported Trump’s anti-democratic coup attempt have faced any discipline. So I have to acknowledge a positive development.

In California, after a 34 day trial, the Court recommended John Eastman, a key Trump lawyer, be disbarred for his role in Trump’s coup attempt. The Court fined Eastman $10,000 for “making numerous false and misleading statements regarding the conduct of the 2020 presidential election”. It found Eastman demonstrated moral turpitude and failed to show any remorse or accountability for his actions.

In a comprehensive 128 page order, Judge Yvette Roland pointed out that Eastman knowingly made many false statements in furtherance of Trump’s criminal scheme to stay in power. Eastman knew that Attorney General William Barr had reported to Trump that there was no evidence of widespread fraud or illegality that could have affected the outcome of the election. Eastman also knew that 60 courts had dismissed cases alleging voter fraud.

Yet in spite of those realities, from December 9, 2020 tp January 6, 2021, Eastman recklessly formulated legal strategies to promote the Big Lie idea that the election was in question and had, in fact, been stolen. He was a loyal foot soldier (actually maybe a general) in Trump’s fascist coup attempt.

In his January 6 speech at the Ellipse before Trump spoke, Eastman falsely asserted that Dominion voting machines had fraudulently manipulated the election results between November 3,2020 and January 5, 2021.

He said “they put ballots in a secret folder in the machines, sitting there waiting until they know how many they need” and that after the polls closed “unvoted ballots” were matched with “an unvoted voter” to fraudulently change the election totals in favor of Joe Biden and the Democratic candidates in the Georgia runoff.

Eastman falsely argued that Fulton County Georgia officials removed a suitcase of hidden ballots from under a table out of view of election observers and fraudulently processed ballots.

Additionally, he said Georgia election officials allowed unqualified individuals to register and vote; he alleged they allowed underaged and unregistered individuals to vote; he said they allowed individuals to vote who had voted across county lines; and he argued they accepted votes cast by deceased individuals.

In a separate proceeding, Eastman is under criminal indictment in Georgia, along with Trump and many others, for racketeering and conspiracy. Other Trump lawyers, Sidney Powell, Kenneth Chesebro and Jenna Ellis, have already pled guilty to the Georgia criminal charges.

Writings also figured in the California Eastman proceeding. In his infamous memos, Eastman asserted that Vice President Mike Pence had the legal authority to delay a count of electoral votes on January 6. Eastman unsuccessfully tried to convince Pence to execute a plan unilaterally to reject the electoral count of certain states and to delay the electoral count to further Trump’s coup.

One other false assertion needs to be mentioned. Eastman argued on Steve Bannon’s War Room radio program on January 2, 2021 that there was “massive evidence” of fraud involving absentee ballots, most egregiously in Georgia, Pennsylvania and Wisconsin. This was another Big Lie Trump has consistently pushed and, no doubt, he will use it again in 2024.

What we have is an example of a lawyer who wanted to win too much. He did not hesitate to make up facts that served his purpose. Misrepresentation was his stock in trade. In violation of all ethics and his professional responsibility, he was willing to subordinate himself to Trump’s power-hungry scheme.

Eastman has asserted a First Amendment defense but the First Amendment is not absolute. The First Amendment doesn’t protect speech that is employed as a tool in the commission of a crime. False statements made knowingly are not protected speech. Eastman crossed the line from zealous advocacy to criminal conduct that obstructed the lawful administration of justice.

Eastman has every right to appeal to higher courts but the handwriting is on the wall. He has more than earned disbarment from the legal profession. All lawyers have a duty of honesty and candor to the tribunal. Eastman recklessly and knowingly breached that duty.

It is critical to the rule of law that the legal system show it is not powerless in the face of MAGA coup attempts. As noted, very few Trump lawyers have had to pay any price for their participation in his 2020 election schemes. Rudy Giuliani was suspended. Jeffrey Clark, former Department of Justice lawyer, also faces disbarment proceedings.

Without discipline, too many lawyers will be willing to collaborate with whatever half-baked extra-legal strategy Trump concocts for the 2024 election. Discipline is the needed disincentive. Trump’s past behavior shows he would never accept losing. The rule of law is at stake.

I think the Bar and Judiciary are still too passive about the continuing fascist threat to our democracy. Too many lawyers and judges are playing the game of both-sidesism and pretending the MAGA threat is not happening. MAGA will again try and use violence, intimidation and the charge of voter fraud to get its way. They have forced many election officials to quit out of fear of retaliation. MAGA doesn’t respect the outcome of elections.

In 2024, lawyers and judges need to stand strong to roll back fascist politics. That threat has not gone away.