This week’s victim in the campaign to cancel attorneys who committed the sin of representing former president Trump is John Eastman. Eastman wrote two opinion memos for President Trump about the Electoral College process.
Because they do not like Eastman’s client, or his legal reasoning, a swarm of signatories has asked the State Bar of California to investigate whether his representation violated California’s legal ethics rules.
The transgression? Eastman wrote his pair of private memos to the president of the United States providing his legal opinion about the functioning of the 12th Amendment and federal statutes, some of which Eastman characterized as unconstitutional, and how the vice president, consistent with the text, could potentially either delay the counting of electoral votes or refuse to accept contested slates.
Back in the old days of representing GITMO detainees, we called that the sacred right to legal counsel. In olden days, lawyers representing terrorists were allowed to fill their terrorist-clients’ heads full of reasons they weren’t guilty of trying to kill Americans.
Times have changed.
Indeed, the chief author of the bar complaint against John Eastman is Stephen Bundy, a Berkeley law professor. In an October 1999 American Lawyer article about lawyers not wanting to defend tobacco companies, Bundy commented on the importance of making sure everyone has legal representation: “If you’re the last lawyer in town, you have to put your feelings aside.”
Bundy now borrows from the reasoning of another time and another place: Your guilt or innocence depends on your politics. In Bundy’s view in 2021, if you’re the last lawyer in town, you better not represent Donald Trump.
What is happening to the legal profession is the same thing that is happening everywhere else. An oppressive orthodoxy has taken hold. Fall in line, or suffer consequences to your livelihood. Represent the wrong clients, say the wrong things, think the wrong thoughts, and you will be targeted by a leftist pack of wolves wearing suits or holding endowed faculty chairs.
Take Rick Hasen, the “Chancellor’s Professor of Law and Political Science at the University of California, Irvine and Co-Director of the Fair Elections and Free Speech Center.” Having Hasen chair a fair elections and free speech center is like having Hugo Chavez chair a center to promote the free enterprise system in South America.
The fey Hasen is obsessed with Eastman, filling his election law blog with fever dreams about Eastman and advocating “shunning.” Shunning is a practice that can characterize cults, and in this case, it is the cult that now makes up the majority of legal academia.
Once upon a time, it was an honor to represent the president of the United States, no matter who the president was. Yet four big law firms refused to represent President Trump in the bogus Russia investigations in 2017 and he struggled to find lawyers before the January 2021 impeachment trial too. Law firms dropped their representation of Trump in his election challenges, and even refused to allow lawyers to work on the president’s matters pro bono.
Such courage. The zeal the legal profession formerly exhibited for GITMO detainees faded once it meant representing a president who received over 74,000,000 votes.
Professor Bundy, if you are in the business of filing ethics complaints against lawyers for misconduct, Google Michael A. Sussman. Warning: Sussman shares your politics, so you might not be as interested in him as you are John Eastman.
Its one thing to disagree with the legal conclusions Eastman made in his private memos; it is quite another to believe he should be subject to bar discipline.
Trump isn’t alone in being targeted by the establishment legal profession and academia. Others have suffered from their proto-totalitarian tactics.
A bar ethics complaint was also filed against Texas Attorney General Paxton this past summer over his Supreme Court petition regarding the 2020 election.
Linda Kerns, a highly accomplished Pennsylvania lawyer, has also fallen victim to bar complaints that are a part of these proto-totalitarian purges. Kerns represented both Trump as well as the Public Interest Legal Foundation, an election integrity law firm with which I and Eastman are associated.
Kerns was involved in multiple successful cases on PILF’s behalf to clean voter rolls in Pennsylvania and remove active dead registrants.
Kerns, Paxton, and Eastman won’t enjoy any defense from those who once hailed the high virtue of the right to counsel.
Gone are the days of lionizing John Adams for his defense of eight British soldiers on trial for the murder of five colonists. Adams was only useful when there were terrorists held by the Bush administration to defend.
Don’t forget, central to the left’s long march through the institutions were novel legal arguments squarely at odds with existing law. The victories they secured with these contra-jurisprudential arguments are grand trophies for the left. But they all started with some lawyer putting arguments to paper that hadn’t yet been accepted, or even worse, had been flat-out rejected by courts.
What Eastman did was less significant. He wrote short private memos to a private client describing how he saw the functioning of the 12th Amendment and other election-related statutes and how they may conflict with the constitutional procedures of the 12th Amendment.
The lawyers who ushered in a revolution through the court system in cases like Roe v. Wade and Lawrence v. Texas did something far more radical than Eastman did. They argued positions squarely at odds with existing jurisprudence. Eastman made arguments in a private memo to a client that made an effort to stay within the text of the Constitution as he saw it.
Imagine the bloodthirsty profession we will inhabit if the right starts filing supercharged ethics complaints every time a lawyer for a leftist activist group makes arguments contrary to existing law. What a circus – in the Roman sense – we will have on our hands once both sides adopt Bundy’s and Hasen’s selective attitudes toward the right of representation.
Indeed, Section 6 of the Preamble of the Model Rules of Professional Conduct recognizes the import and necessity of having representation available to everyone.
In today’s world, our judicial system needs more lawyers like John Adams and fewer cowards. John Eastman represented a client unpopular to some and made arguments that were anchored to his interpretation of the Constitution. No matter your feelings on the 2020 election, the swarm directed against him is more dangerous to our Republic than anything he is accused of doing.
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