Ex-Trump attorney to face attorney disciplinary proceedings for 2020 election plot aimed at Pence

By Tierney Sneed, CNN

Washington (CNN) — The efforts of John Eastman, an ex-attorney for former President Donald Trump, to convince then-Vice President Mike Pence that he could interfere with Congress’ certification of the 2020 election results will be the subject of several days of attorney ethics proceedings set to begin in a Los Angeles courtroom on Tuesday.

Disciplinary attorneys for the California Bar will be asking the court to disbar Eastman for that and other conduct related to the 2020 election advocacy he did for Trump.

The proceedings, coming at a time when Trump is struggling to build out his legal team for the classified documents charges he’s facing from special counsel Jack Smith, are a reminder of the predicaments Trump’s lawyers find themselves in for their work with the former president.

The disciplinary hearings could surface new information about the behind-the-scenes efforts by the Trump team to reverse his reelection loss, particularly with Eastman slated to take the stand at the trial-like proceeding. A Smith-led special counsel investigation into those election subversion maneuvers is ongoing, and last summer, federal investigators seized Eastman’s phone.

Eastman and his attorneys have vigorously defended his representation of Trump during the 2020 election. They argue that the California Bar is going after conduct that is shielded by the First Amendment’s protections for political speech.

The trial attorneys for the California Bar declined CNN’s request for comment. Their filings accuse Eastman of causing “significant and ongoing harm to the legal profession and the public.”

“Though respondent has attempted to characterize his conduct as nothing more than zealous advocacy, by early December 2020, respondent knew or was willfully blind to the fact that Joe Biden had won the presidential election and that any effort to challenge or overturn that election would have been frivolous or unlawful,” the Bar’s filing said.

Claims of ‘moral turpitude’ and other allegations Eastman violated his attorney code

The California Bar’s central accusation is that Eastman engaged in “moral turpitude” in his 2020 election gambits, including with false claims of fraud and in the pressure campaign on Pence. The disciplinary attorneys also allege Eastman failed to support the US Constitution, in violation of his professional duties, and that he sought to mislead a court in a Supreme Court submission he filed on behalf of Trump.

Eastman, in filings, has maintained that his advocacy for Trump and the legal theories that he was pushing were legitimate, tenable and put forward in good faith.

“The idea, foisted by the Bar, that Dr. Eastman undertook that assignment to concoct a scheme to ‘steal the election,’ is, in a word, bunk,” his lawyers said in a filing. Eastman’s attorney was not available for comment.

The Bar’s evidence includes the public record of election officials’ assertions, post-election audits and court rulings that debunked the Trump team’s fraud claims, as well as emails Eastman sent during that period, and past legal commentary Eastman gave that allegedly show he knew his theories about the 2020 election were not grounded in fact.

The Bar also plans to put on the stand former Pence adviser Greg Jacob, who has previously discussed Eastman’s Pence-aimed efforts in public congressional testimony.

Key to the Bar’s case is proving that Eastman knowingly made false statements in his advocacy during the 2020 election and in his efforts to get Pence to overturn the results. Eastman counters in filings that he had a good basis for believing his legal theories were plausible and that he had “statutory duty of undivided loyalty and to provide fulsome advice” to his client.

“The Bar has to prove that the statements were not just wrong but also that Eastman knew it,” Stephen Gillers, a New York University School of Law professor who has written extensively about legal ethics, told CNN in an email. “The burden of proof is clear and convincing evidence, which is between the civil case preponderance standard and the criminal proof beyond a reasonable doubt standard.”

The disciplinary attorneys’ filings tout evidence they say shows that Eastman shot down proposals that would have allowed his theories about Pence’s abilities to disrupt the certification vote to be aired out in a lawsuit or in a congressional hearing.

“I put the odds at winning in either D.D.C. or CADC closer to zero, and the risk of getting a court ruling that Pence has no authority to reject the Biden-certified ballots very high,” Eastman said in an email from the post-election period, quoted in the filings. “And danger that SCOTUS will decline to take as well.”

The Bar’s attorneys plan to call Eastman to the stand on the first day of proceedings. Eastman – who appeared privately before the House January 6 committee but declined to answer several of the lawmakers’ questions on 5th Amendment grounds – has previewed that he believes attorney-client privilege may preclude him from testifying about some aspects of his 2020 work.

The Bar also lists among its witnesses an assortment of state and local election officials, who are expected to testify about the threats their offices received due to the false claims about the 2020 vote pushed by Trump’s allies.

Eastman, meanwhile, has put forward vocal purveyors of bogus election fraud claims as potential witnesses for his response to the Bar’s case. Eastman also may call as a witness John Yoo, the former George W. Bush administration Justice Department official known for the so-called “torture memos” approving the use of enhanced interrogation tactics, and Janice Rogers Brown, a conservative former California Supreme Court justice who, during the Bush administration, was floated as a possible US Supreme Court nominee.

Attorney disciplinary proceedings as a tool of ‘accountability’

This month’s proceedings, in front of State Bar Court Judge Yvette D. Roland, are just one step of the ethics process brought against Eastman. If the judge finds Eastman violated ethics rules, she will then also decide the proper punishment — which could be disbarment, as the disciplinary attorneys are seeking, or a lesser penalty.

The decision will then be put before the California Supreme Court for final review and approval.

Eastman is just the latest Trump attorney to face ethics charges for the 2020 election reversal efforts. Ex-Trump lawyers including former New York Mayor Rudy Giuliani, Sidney Powell and Jenna Ellis have all faced disciplinary proceedings, as has Jeffrey Clark, a former Justice Department official who sought to aid Trump’s election reversal plots within the department.

The proceedings against Giuliani in both New York and DC have gained traction, while proceedings brought by the attorney ethics office in Texas against Powell were thrown out. Ellis reached a settlement in disciplinary proceedings brought in Colorado, where she is licensed, under which she was publicly censured, and she admitted that some of the statements she made about the 2020 election violated professional conduct rules.

“We’ve seen that accountability is the best tool that we have,” said Christine P. Sun, the senior vice president of legal at the States United Democracy Center, which filed the ethics complaints against Eastman. Sun noted the deterrence effect of the prosecutions of the rioters who assaulted the Capitol on January 6, 2021.

“The legal professional shouldn’t be above the rule of law,” Sun told CNN. “When lawyers are out helping their clients commit crimes or trying to overturn a free and fair election, they should be held just as accountable as folks that were led into believing those lies and into breaching the Capitol.”

In some quarters of the legal community, including among attorneys who were deeply opposed to Trump’s 2020 election gambits, there has been discomfort with the use of professional disciplinary proceedings – which have been typically used against attorneys who steal from their clients or engage in other types of malfeasance that directly harm their clients – against those who participated in Trump’s legal efforts.

Eastman may call as a witness New York Law School Professor and media commentator Rebecca Roiphe – no supporter of Trump or his election reversal efforts – to testify about “a lawyer’s First Amendment rights both in relation to a client and outside of any attorney-client relationship,” according to Eastman’s filings, which said she also could testify about “circumstances in which a state bar may impose discipline against a lawyer for exercising a lawyer’s First Amendment rights.”

Sun, of the States United Democracy Center, countered, “Just because you’re using speech in order to commit a crime doesn’t mean that the First Amendment protects your speech.”

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