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The intellectual leaders of Donald Trump’s failed coup finally face the threat of grave consequences for their integral role in the legal plot to overthrow the 2020 election.
No lawyer has done more than John Eastman and Jeffrey Bossert Clark to try to hand Trump an undeserved second term. Eastman developed and promoted the theory that Vice President Mike Pence might reject Joe Biden’s victory, and then endorsed it at the Jan.6 rally that instigated the insurgency. Clark urged his Justice Department superiors to pressure multiple legislatures to attribute their electoral votes to Trump even though Biden won their states. The two men remain practicing lawyers.
Today, however, their ability to practice law is threatened. On Monday, a bipartisan group of lawyers, including two former federal judges, asked the California bar to investigate Eastman. A day later, another bipartisan group of lawyers, including two senior Justice Department officials led by George HW Bush, asked the DC Court of Appeals Disciplinary Committee to investigate Clark.
Preventing a future attack on democracy will require repudiation of the conspirators who attempted to steal the last election.
These demands could lead to the revocation of Eastman and Clark’s license to practice law, a crucial first step towards stigmatizing the malignant theories the two men have been championing for months. Since the conservative legal movement has refused to criticize their work as banned, the complaints also provide a new opportunity for the mainstream legal establishment to confirm that a lawyer attempting to overturn an election has been found unfit to exercise the law. law.
Both letters are supported by a remarkable list of heavyweights. The Eastman letter was signed by retired state and federal judges, state attorneys general, US prosecutors and governors. It highlights Eastman’s key role in developing the theory that Pence could reject Biden’s January 6 victory in the electoral vote count. In two memos, Eastman presented a putative path for Pence to unilaterally reject Biden voters from seven states, depriving tens of millions of Americans of the right to vote. He defended this idea at the “Stop the Steal” rally on January 6 on stage with Rudy Giuliani (whose law degree was later suspended). And he has been spreading baseless conspiracy theories all the time, insisting that Trump lost due to widespread fraud of which there was no evidence. (On January 6, he claimed that Democratic agents hid Biden’s votes in a “secret file” in the voting machines.) Eastman also filed a brief on behalf of Trump asking the Supreme Court to overturn the votes. elections by nullifying millions of valid votes.
Eastman’s letter, which was conducted by the United States United Democracy Center, alleges that these and other unscrupulous actions violated both California rules of professional conduct and the Law of the Bar of the United States. State. These rules prohibit lawyers from assisting a client “in conduct that the lawyer knows” to be fraudulent, illegal or deceptive. They also prohibit lawyers from knowingly or recklessly making any “material misrepresentation of fact or law”. Throughout his crusade, Eastman continually lied about the facts and the law, alleging non-existent voter fraud while claiming that Pence could run the election through a ridiculously illegal ploy. The letter asks the California Bar to investigate this unethical legal work, a process that could lead to Eastman’s deregistration.
Like the Eastman Letter, the Clark Letter received the support of a group of star lawyers from across the political spectrum. Donald Ayer, Assistant Attorney General to George HW Bush, signed on, as did his former colleague Stuart Gerson, who served as Acting Attorney General under Bush. The letter describes Clark’s corrupt efforts to push the Justice Department behind Trump’s plan to overturn the election. Although he joined the DOJ as an environmental lawyer, Clark became assistant attorney general in the Civil Division of the Department of Justice during Trump’s final months. As such, he hatched a plot to force swing state legislatures to deny the legitimacy of Biden’s victory and attribute their voters to Trump instead. In a draft letterClark alleged that massive voter fraud tainted the race, forcing legislatures to reject the results – exclusively in states Biden won – and declare Trump the real winner. When Acting Attorney General Jeffrey Rosen refused to send this letter to seven state legislatures, Clark launched a plot with Trump to oust Rosen and take over his post.
As in California, the District of Columbia’s ethics rules prohibit lawyers from engaging in “dishonesty, fraud, deception or misrepresentation.” Courts have interpreted this prohibition as encompassing “behavior indicative of a lack of honesty, probity or integrity in principle” as well as “reckless misrepresentation” of fact and law. DC law also prohibits lawyers from engaging in “conduct that seriously interferes with the administration of justice.” Clark’s letter argues that Clark broke these rules by lying about non-existent voter fraud, then using those lies as a basis for interfering with the election by persuading states to illegally certify Trump as the winner. Simply put, Clark attempted to thwart the “administration of justice” by endorsing the President’s unlawful conspiracy on behalf of the United States.
At this early stage, it is impossible to say whether these letters will trigger a serious investigation that will result in either of the men being deregistered. But the effort shows that some lawyers in the United States will not tolerate coup perpetrators in their professional community.
It’s important to remember that Eastman and Clark were not obscure cranks, but established figures in the conservative legal movement. Both men led influential practice groups within the Federalist Society, and Eastman was a powerful figure within the organization. Despite ample evidence that the two attempted to steal Trump’s election, they suffered little to no apparent reaction from their fellow conservative lawyers. According to David Lat, the Federalist Society “slowed down” Eastman’s departure from his practice group so that he “did not appear to be reacting to the pressure.” Although he resigned from Chapman University, Eastman remains a senior researcher at the far-right Claremont Institute, filing briefs in the Supreme Court. Clark, meanwhile, landed a position as General Counsel and Director of Strategy at the New Civil Liberties Alliance, a law firm that fights “administrative state”. (The group’s most recent battle: fighting COVID vaccine warrants.)
While conservative lawyers don’t ostracize Eastman and Clark, the job falls to the officials charged with protecting the practice of law from corruption. And it is incredibly important work. Eastman, Clark, and their co-conspirators sought to bring fringe and undemocratic theories into mainstream law. In doing so, they laid the groundwork for a much more organized attempt in 2024. Next time around, the conspirators will have substantiated their false theories, dressing them in the garb of legal jargon endorsed by federalist society. They will talk less about the secret files and more about the “doctrine of the independent state legislature,” as my colleague Rick Hasen once warned. And they will claim that they are simply defending enduring constitutional principles that give a handful of politicians the power to decide presidential elections against the will of the people.
Preventing such an assault on American democracy will require a complete repudiation of the conspirators who attempted to steal the last election. This process begins with a formal recognition that overturning an election is an illegitimate use of a law license. Excluding Eastman and Clark will not solve the looming crisis. But it will at least warn conservative lawyers that such lawless behavior will not go entirely unpunished.
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