Ostracise John Eastman

The prestigious lawyer prepared a blueprint for destroying American democracy

John Eastman, as we’ve known for some time, served as consigliere to Donald Trump when the now-former president tried to overturn the 2020 election. More recently, the release of two memos Eastman prepared for Trump during this period (found here and here) reveal that the prestigious law professor essentially laid out the blue print for Trump’s attempted coup. The memos detail a step by step process for overturning an election by having the Vice President refuse to certify an election (based on dubious claims of fraudulent voting), having state officials offer up alternative electoral slates and overriding the popular vote, and getting congressional allies to ratify the results. If Eastman’s blueprint had been executed, Trump would have been installed for a second term despite losing both the popular vote and the electoral vote, completely unmooring the presidency from the franchise. The presidency would have become a dictatorship. 

The scenario Eastman advocated is all the more shocking because it was based on a knowing lie from the Trump administration. As the New York Times reports, even as Eastman and other Trump lawyers were making extravagant claims about electoral fraud, “Trump’s campaign had already prepared an internal memo on many of the outlandish claims about the company, Dominion Voting Systems, and the separate software company, Smartmatic. The memo had determined that those allegations were untrue.”

Eastman may or may not have known the claims were fraudulent. What’s key though is that he was very much part of a larger project with many forces at work converging to execute a coup. 

That project had various wings: the campaign wing made claims they knew to be false; these false claims were spread far and wide by the media wing (led by Tucker Carlson); the legal wing (with which Eastman was most involved) prepared theoretical arguments to justify overturning the election; the congressional wing (notably Senators like Chuck Grassley and Ted Cruz) signalled they would go along with the plan; and the extra-legal wing (the rioters of January 6) provided muscle designed to intimidate reluctant Republicans. 

The plan of course, fell apart, largely because counsel other than Eastman convinced Vice President Mike Pence that he had no right to deny certification. But it came perilously close to fruition and could provide a model for future coup attempts.

In the aftermath of the failed coup, we are faced with the crucial question of what to do with Eastman. It’s unlikely that he committed any crime, so isn’t liable the way the January 6 rioters have been. But letting Eastman get away scot-free is the equivalent of jailing low level mobsters while ignoring the people whispering in the Godfather’s ears.

One viable solution is social ostracism. As a working lawyer and law professor, Eastman should be subject to professional discipline. As Slate noted back in January, some of the institutions associated with Eastman  (notably the Federalist Society) are sticking with him. But some have broken with Eastman:

Other institutions affiliated with Eastman have criticized his efforts to overturn the outcome of a democratic election. He currently has ties to two schools: Chapman University, where he normally teaches, and University of Colorado Boulder, where he is a visiting scholar at the Benson Center for the Study of Western Civilization. Although both schools said they cannot fire him without violating policies protecting academic freedom, their leaders vocally denounced his actions. Daniele Struppa, the president of Chapman, said in a statement that “Eastman’s actions are in direct opposition to the values and beliefs of our institution.” He added that he had brought “humiliation” upon the school. A letter signed by 169 Chapman faculty and members of the Board of Trustees called on the university to discipline Eastman for his role in the insurrection.

Eastman subsequently resigned from Chapman.

The Slate piece goes on to note Eastman's influence through his enduring affiliation with the Federalist Society:

Eastman is not only a member of the Federalist Society, the network of conservative attorneys that provided the legal scaffolding for Trumpism. He is the chairman of the organization’s Federalism & Separation of Powers Practice Group and a frequent participant in its public events. The Federalist Society’s refusal to expel, condemn, or distance itself from Eastman in any way indicates that the organization is untroubled by the subversion of American democracy.

The release of the memos where Eastman advocated a scheme of anti-democratic sedition hasn’t changed his status in the Federalist Society one whit. The next step should be to bring pressure on the Federalist Society to sever ties with Eastman. If the Federalist Society refuses, it itself can be targeted. The Federalist Society maintains a certain academic status by the fact that it is treated by liberal institutions as a voice of mainstream, respectable conservatism. That’s why universities host Federalist Society events and liberal academics frequently participate in these events.

But if the Federalist Society continues to accept John Eastman as a member in good standing, why should it continue to enjoy a stamp of approval from non-right-wingers?

Trump’s farcical coup attempt was pushed by a motley crew of malicious misfits. Some of these people committed crimes and should be jailed. But even the ones who were more weaselly and simply stood on the sidelines as cheerleaders deserve some punishment. If the law can’t reach them, society still can. 

HOUSEKEEPING

By mistake, yesterday’s post was only sent to some subscribers. It’s about John McWhorter’s misguided intervention into a cancel culture controversy which led him to whitewash the Ku Klux Klan. It can be read here.

(Edited by Emily M. Keeler)

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