(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
 . . . . . . . . . .



Eastman Will Be Subject to Bar Discipline...Stay Tuned [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2023-11-04  

Yesterday (November 3rd) was the last day of a 33-day trial. When I first joined the proceedings, we were finishing up Eastman’s direct examination, followed by cross-exam. Eastman appears to be forthcoming in his testimony and sticking by his (now debunked) conspiracy theories. Unlike his appearance before the January 6th Committee, Eastman has not asserted the Fifth (right to remain silent) once. Eastman has refused to answer only a handful of questions based on asserted attorney-client privilege, and he has also submitted a privilege log. So…we got a lot more information here about what was going on January 6th and in the Willard “war room.”

This has been a very low-key trial when compared to the showboating going on in New York (and will likely occur in Texas if the Paxton discipline case ever gets to trial). Although Judge Roland occasionally appears to be losing patience and “pushes” the parties to get through on time, this could be connected to a tight court calendar and not to animosity toward either party. The “usual” legal wrangling has been conducted with courtesy and decorum. Unlike Trump, Eastman only gets on his “soapbox” in response to questions.

Judge Roland has definitely been more generous to the bar in her evidentiary rulings, which can make her appear to be biased. She has also admonished Mr. Miller against “leading the witness” a couple of times, but think this may have been due to her tendency to move the hearing along. The Judge has several times emphasized a “hard stop” on testimony by 4:30 pm on November 3rd (which was extended anyway).

A lot of Eastman’s exhibits are hearsay, but part of his argument is that he relied on them in making the decisions he did. The parties have agreed to allow admission of “stipulated” documents that were presented to Eastman prior to January 18, 2021 solely for the purpose that he relied on them and not for “the truth of the matter asserted therein.” Judge Roland offered a time next week to go through the admission of exhibits with both sides.

Eastman does not present as being deceitful or evasive (although sometimes his answers are unnecessarily circuitous), but he seems to genuinely believe his own B.S. Not sure if Eastman lives in Southern California, where he could conceivably have had acting lessons and is just appearing to be sincere. On cross exam a number of Eastman’s exhibits were displayed, and most of them source from places like Gateway Pundit, Epoch Times, and other RWNJ media.

Which suggests a much larger problem than the malfeasance of a single attorney. We all know that Trump was grasping at whatever theories were floated before him in order to hang onto (illegitimate) power. What is disturbing is the large number of folks who were willing to accommodate him—and the even larger army that rose up to produce “evidence” to support the underlying voter fraud and conspiracy theories. Many of these folks were attorneys and statisticians (or at least purported statisticians), who spoke in a lingo that could not be readily deciphered by the average person. And these technical arguments and convoluted claims were certainly not going to be challenged by the fluff-heads on Faux News and other RW outlets. They would need to have had an educated audience with critical thinking skills.

Bar disciplinary authorities only have jurisdiction over attorneys and their licensing. They have no authority over false stories in the media. There are clear rules against attorneys lying or submitting false or frivolous information in legal proceedings. Alternatively, every lawsuit that does not “settle” has a winner and a loser. An attorney facing discipline can argue (as Eastman does here) that he had a “good faith belief” in the correctness of both his factual and legal arguments, even if they are ultimately proven wrong. Bar discipline authorities sometimes have an aversion to “chilling creative lawyering,” as this could thwart the law’s evolution and development. For example, slavery was legal at one time, and it took a lot of losing arguments to finally change this.

The question as to what are an attorney’s obligations with respect to vetting evidence generally comes down to “good faith.” However, good faith, like pornography, is ambiguously defined, often coming down to an “I know it when I see it” analysis. Personally, I would like to see bar disciplinary authorities come up with some rules (or even just guidelines) for attorneys to vet information. In this case, Eastman testified that once his name and contact information became publicly available, he was “on the receiving end of a lot of information,” all of it that (surprise, surprise) supported his position. Yet, Eastman did not create this stuff himself. Most of us here already know a lot of this stuff was BS. But it remains unclear what an individual attorney is actually required to do when inundated with BS evidence from hundreds (if not thousands) of various sources and a short time frame before a filing deadline.

When asked about his reaction to statements by former US Attorney General Bill Barr that the 2020 election was secure, Eastman’s response was that he did not give Barr “a lot of credence” because the “Public Integrity Unit would not approve the investigations” he (and other Trumpers) were requesting. Eastman went on to discredit the testimony of witnesses and experts who had previously testified for the Bar; to include Law Professor John Yoo (known for the Bush-era torture memo) and former Federal 4th Circuit Appeals Judge J. Michael Luttig (who also testified before the January 6th Committee).

Summary of charges and list of witnesses

Other Eastman testimony:

The students who were assisting him with research were not being paid.

Eastman was retained by Trump to “discuss options under the 12th Amendment.” Although Eastman was “looking at the issue” beginning sometime in September 2020, he was formally retained by Trump in early December (immediately prior to the Texas suit, which came up a couple of times). Eastman said he asked for a written agreement in early December “before I made a formal appearance in the Texas matter before the U.S. Supreme Court.”

Eastman was not giving advice to former VP Pence.

Eastman “does not recall” a 4-minute telephone call with Trump that was recorded on the White House phone logs on January 5th.

Eastman does not know whether Trump read any of his memos.

Eastman did not know (and did not ask) who else was advising Trump on the same issue.

Eastman does not know whether or not Trump has read any of his articles. “He [Trump] appeared to be well-versed on the issues….You don’t get to be President without some intellect….[Trump] doesn’t sleep much, or drink…he is a workhorse.”

Eastman stands by his position that the Electoral Count Act is unconstitutional and there were both “illegal votes” and “fraud” in the 2020 election.

Eastman testified that he was aware of the “deep divisions” in the country, which have persisted since 1860. He does not believe the comments he made on January 6th had any effect: He was not “inciting to imminent violence,” and “the people were there to hear Trump, not me.” Nonetheless, he has been adamant that allowing “illegal” election results to stand is more harmful than the violence on January 6th (which Eastman characterizes as a “violent riot” that he has “condemned,” but it was “not an insurrection”). Eastman’s expectation was that Pence would send the electoral votes back to the state legislatures (in the “contested” swing states), who would then “look at the evidence of illegality, extrapolate the number of illegal votes, and certify who in their best judgment won the election.”

Some of the sources of Eastman’s exhibits (along with links to Media Bias ratings):

American Thinker

Gateway Pundit

Epoch Times

2000 Mules

During cross examination of Eastman, the Bar played a videorecording of an interview Eastman did in April and May of this year (during the time the CA Bar proceedings were in progress). The host played a video clip (which has since been confirmed to be innocuous activity) which purports to show election workers moving “suitcases” from under a table and “multiple ballots being run through machines multiple times.”

During this interview, Eastman goes on a diatribe about the “danger” of a “stolen” election. He spoke of the “consent of the governed” being the “cornerstone of our system….if the government is run by someone not chosen by the people, we won’t go back to free and fair elections.” Eastman also railed against the “violence in reaction to laws you don’t like” by “the left” in the summer of 2020, including “assassination attempts on Supreme Court Justices.” Eastman apparently misses the irony that overthrowing legal votes and fomenting violence when you don’t like the results is precisely what he was trying to do.

Yesterday afternoon, Judge Roland said she was going to “enter a finding of misconduct.” The Bar had yet to present rebuttal, and the parties will be allowed to present aggravating and mitigating evidence. Due to time constraints, the parties have agreed to waive oral closing arguments. Each side has until November 22 to submit written arguments. So it will be a few weeks before we know what the penalty is going to be.

Yesterday, we finished up with Professor Justin Grimmer’s rebuttal testimony. Professor Grimmer got into the weeds of the ballot signature match rejection rates, producing charts that were somewhat difficult to follow. Some things that Eastman’s expert characterized as “anomalies” happen in every election and are not necessarily evidence of fraud. Dr. Grimmer performed a contrast analysis for every pair of elections from 1960/1964 through 2016/2020. You could see that a couple of “large” counties produced outliers on the graphs in almost every election pair, and so this was not something unique to 2016/2020. “Larger counties regularly deviate, and there is potential for bigger swings in larger counties.”

Other statistical “geek” rebuttal:

Dead voters: Dr. Grimmer traced the “cancelled voter” file in Georga, and out of 863 returned ballots, it was determined that 857 of them were valid (the voter legitimately voted early in person or absentee before they died).

One of Eastman’s expert reports did not explain the underlying methodology and could not be replicated (i.e., it is “unreliable.”)

There was some testimony about the infamous Cicchetti report that was cited in the Texas case. The main “problem” with this report was mischaracterization of its actual findings by the Trump attorneys pushing it. The statistical “problem” was that it presumed no changes in either the number of voters or share of support for the candidates (the “null hypothesis”), which is “absurd and preposterous.”

The Bar also put on two “aggravation” witnesses. Aggravating factors in bar discipline cases include multiple acts of wrongdoing, a pattern of misconduct, lack of candor, indifference toward rectification or atonement, and significant harm to….the public, or the administration of justice. The first was Sambo Dul, who had formerly worked for the Arizona Secretary of State, but left SOS in March of 2022 (she now works for AZ Governor Katie Hobbs). Ms. Dul testified that when she was with SOS, she was “doxed” and had to install security cameras in her home. The police have increased patrols in her neighborhood. She also had to come in to work through the basement in order to be safe. Many of her co-workers had to work remotely due to concerns for safety. She was also concerned about the “millions of dollars” spent for the Cyber Ninjas audit, which ultimately validated that there were no major (outcome-determinative) problems with the 2020 elections.

The second aggravation witness was Johnathan Marks, Pennsylvania Deputy Secretary of Elections. Mr. Marks displayed a couple of the profanity-laced and hateful threats received by his office. However, he was even more concerned about less-threatening complaints from voters stating that they were not going to vote again until everything is “fixed.”

Eastman’s attorneys established that there was no direct causal link between the threats received by the AZ and PA election officials and Eastman’s conduct. Ms. Dul stated that, in her opinion, all of the lawyers and elected officials who “fanned the flames” of mistrust by promoting a false narrative about the 2020 election bear some responsibility.

The last aggravation witness was Eastman himself. Questions involved public statements Eastman made this year about the Bar proceedings. Eastman confirmed that he made the statements and his continuing assertion of them: “The [Bar} Complaint is so full of errors people making it should be disbarred.” Eastman still thinks the complaints against him warrant disbarment, but “know that you all have immunity.” Eastman argued that the Bar is “making false statements to a court,” which is the very thing they are accusing him of. “In my view, none of my conduct violated any Bar standards.”

Another statement about “outrageous persecution by activist lawyers to ‘get’ President Trump and lawyers like me” was sent out by Eastman’s “fundraising” team to cover his legal expenses, which Eastman admits he ratified. Eastman alleges the Bar Complaints were filed by “activist organizations” like States United Democracy Center, and The 65 Project. “This proceeding is unprecedented.” Eastman says he believes he is being targeted due to his representation of Trump, who is “not very well liked.”

When people lie, it is usually for some purpose of self-interest or self-protection. None of these statements are going to help Eastman (indeed, his own words have made it worse for him), so there is no reason to suspect them as being untruthful. Which suggests that Eastman has gone completely down the rabbit hole. And while this also suggests that he is unfit to hold a law license, it is harder to peg his specific malfeasance to standard bar rules and regulations.

The other issue for disciplinary authorities is the collective nature of “conspiracy-style” malfeasance. If Eastman had been a single crank lawyer, he would likely have been subject to lesser forms of discipline such as a public reprimand or brief suspension. The “harm” that resulted came not so much from the actions of an individual lawyer, but lawyers acting in concert with a huge (and well-funded) infrastructure of disinformation with an ulterior (and evil) purpose. If Bar disciplinary authorities hope to encourage deterrence of this behavior in the future, they need to think beyond what happens to Eastman, but send a message to all practicing lawyers as well as the public at large.

I plan to post an update when the written arguments have been submitted, and definitely when Judge Roland issues a decision. I am predicting that Judge Roland will disbar Eastman as opposed to some lesser sanction. Those who want to access documents in the case can do so here. The case number is SBC-23-O-30029, or you can type in Eastman, John Charles.

[END]
---
[1] Url: https://www.dailykos.com/stories/2023/11/4/2203578/-Eastman-Will-Be-Subject-to-Bar-Discipline-Stay-Tuned?pm_campaign=front_page&pm_source=trending&pm_medium=web

Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.

via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/