Tuesday Talk*: Did John Eastman’s Disbarment Violate The First Amendment?

One of the hardest things to swallow for people who are friendly toward Free Speech is that the people you dislike are entitled to it as much as you are. Sure, they may be wrong, even lie, whereas of course you would never do such a thing, and yet, within the normal legal parameters, they still get to speak without suffering any governmental penalty for it. That’s the position taken by three prawfs, Eugene Volokh, Rebecca Roiphe and Nadine Strossen, in an amicus brief in support of John Eastman in support of cert before the Supreme Court.

The last ten years have seen many attempts to punish or compel professionals’ speech in the service of broader ideological goals. This Court rejected two such attempts, in NIFLA v. Becerra, 585 U.S. 755 (2018), and in Chiles v. Salazar, 607 U.S. 627 (2026). It should likewise consider the constitutionality of the punishment in this case—a punishment that, if left unreviewed, portends still more such attempts.

Petitioner John Eastman was disbarred in large part based on his public political statements. The State Bar concluded those statements were false, and therefore sanctionable. This raises an important and unresolved question of First Amendment law: When can lawyers be stripped of their livelihoods based on public political speech that is unrelated to any pending judicial proceeding and that is fully protected when said by ordinary Americans?

Professional speech has taken quite a battering over the past decade, ranging from the use of words that the left characterize as “hate speech” to political speech that falsely attacks opponents or defies all known facts. Indeed, the American Bar Association, a membership organization that lawyers occasionally joined in the olden days, crafted Rule 8.4(g) in the Model Rules of Professional Responsibility significantly curtailing lawyers’ speech lest anyone get offended at the expense of fidelity to the client and zealous representation. This trio of prawfs argues against it, at least here.

The mode of analysis in this case thus seems likely to proliferate in decisions both by deep blue state bars and deep red state bars. It seems likely to arise as to people involved in contentious disputes about federal elections, state candidate elections, state ballot measures, and ideological debates more broadly. In all these contexts, allegations that one’s opponents are lying are par for the course: Indeed, another facet of human nature is to assume the worst motivations of one’s adversaries and the best motivations of one’s allies.

In the past, state bars have sought to punish people they viewed as left-wing extremists who endangered the established constitutional order. See, e.g., James E. Moliterno, Politically Motivated Bar Discipline, 83 Wash. U. L.Q. 725 (2005). This case is a reminder that the same approach is being revived today as to lawyers whom some state bars view as right-wing dangers. And, if the decision endures, it will likely be followed by many other such decisions. It is important that this Court make clear what rules govern this area of the law, so that they can be applied as evenhandedly as possible throughout the country.

But what, you ask, about things Eastman told courts, judges, his singular client? After all, it wasn’t just about appearances on Hannity, you know, making the public stupider by dint of his scholarly legal opinion that the election of 2020 was stolen or that Vice President Pence had the authority to throw out the Electoral College votes and replace them with Trump’s “alternate electors.”

To be sure, this case also involves other allegations of impropriety, such as alleged false statements to courts, to Eastman’s own client (President Trump) and his team, and to Vice President Pence and his team. This amicus brief does not opine on those matters. As many cases (see Part IV) have made clear, if a government sanction—whether a criminal sentence, civil liability, dismissal from government employment, or disbarment—rests even in part on constitutionally protected speech, it cannot stand unless the government can show that it would have reached the same result absent the protected speech.

It may well be that Eastman would be disbarred without regard to anything he said outside the courtroom. It may well be that Eastman’s arguments in court were wrong and, well, dumb (with a “b”), but not disbarment worthy. To a significant extent, the harm Eastman did was to use his academic bona fides to add an air of legitimacy to specious arguments.

No matter how many times Trump calls Todd Blanche, Alina Habba or Jeanine Pirro “highly respected,” it’s not even close to the legitimacy John Eastman, former law professor and dean at Chapman University Fowler School of Law, brought to the table. There is little doubt that Eastman caused serious damage to the MAGA hivemind by supporting, if not creating, a foundation to believe that Trump should have walked away with the presidency in 2020.

Was that his right as a matter of free speech? Should he get another bite of the disbarment apple because it extended beyond his in-court statements to his public statements? Should he be disbarred anyway, and any error in considering out-of-court statements was de minimis and harmless?

*Tuesday Talk rules apply.


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8 thoughts on “Tuesday Talk*: Did John Eastman’s Disbarment Violate The First Amendment?”

  1. Hal

    IANAL, but for his disbarment to violate the 1A, wouldn’t it have to be the government, or an entity that rec’d gov’t funding, that acted to disbar him?

    Ed. Note: Disbarment is government action.]

  2. tk

    I have great respect for Prof. Volokh’s writings on the law, but I don’t think his amicus brief aligns well with the facts of the case. When it comes to the average Joe speaking his/her mind, I’m pretty much a First Amendment absolutist. But a law license is a privilege, a privilege to act as an officer of the court. And while lawyers are expected to give a vigorous defense to their clients’ claims, ethics codes bar them from making fraudulent statements. And, hoo boy, were these fraudulent.

    Eastman repeatedly made these claims both to his client and to the court (he was, in fact, an architect of those claims). That in itself is enough to warrant disbarment. He also repeatedly made those claims to the public, but I think that’s a red herring. It seems to me that he made those claims in public not as a private citizen, but in his role as an attorney and an officer of the court, even if he wasn’t in court at the time. His public statements were made in support of the fraud that he was attempting to perpetrate on the court and the country as a whole.

  3. Skywalker

    We should not turn a prohibition against deliberately lying into a prohibition against repeatedly being wrong, which appears to be what Eastman and Giuliani are guilty of.

    Is there a difference between communist lawyers advocating the violent overthrow of the government and MAGA lawyers advocating the decertification of the 2020 election? Eastman advanced a far fetched legal argument, but it is a clever argument that is not insane. For 58 years courts dismissed hundreds of lawsuits challenging the Jim Crow system because Plessy held that racial segregation was legal.
    Political speech, especially regarding elections, is the most protected speech. We lose a lot when we punish lawyers for advancing novel legal theories, implausible facts or being out of court mouthpieces for clients’ wacky beliefs. In court a lawyer can’t suborn perjury or lie about facts. But lawyers can dispute argue for implausible versions of the facts or far fetched legal theories that have been rejected before.

    1. Tom Kehoe

      You’re right: Political speech receives a very high degree of protection. But fraud does not. Eastman’s own memos show that this was not simply an honest mistake, but a deliberate attempt to pervert a lawful election.

      1. Skywalker

        I agree that fraud is not protected by the First Amendment. But please be specific.

        Eastman is accused of fraud by the January 6th commission because on January 4th he advised Trump that it would violate the 1887 Electoral Count Act (ECA) for Pence to rule on the validity of state certified results. However, Eastman’s argument is that Pence’s authority to rule on the validity of the results comes from the 12th Amendment in his role as President of the Senate presiding order the joint session. Eastman maintains that insofar as the ECA limits the VP’s authority under the 12th Amendment the ECA is unconstitutional and null and void in that respect. We may disagree with Eastman’s legal position, but that is not fraud. There is nothing unique about Trump urging Pence to violate a statute that Trump’s lawyers advised him is unconstitutional. Every presidential administration has maintained that the1973 War Powers Act (WPA) is unconstitutional and all administrations deliberately violate it. Until the Supreme Court rules, I expect every President after Trump will continue to violate the WPA as well as other statutes the executive branch views as unconstitutional. I am glad that Pence stood his ground and did the right thing for the country and the Constitution. But disbarring Eastman and Giuliani is over the top.

  4. tk

    I suspect we’re stuck at agreeing to disagree. But I leave you with two thoughts.

    First, it wasn’t the January 6th Commission that disbarred him, it was the California bar, after a 35-day trial, based on complaints filed by three different groups and signed by dozens of prominent attorneys, judges and specialists in legal ethics. The appeals have stretched on for years and been sustained. Who knows what the Supremes will say — they’ve got plenty of their own ethical issues.

    Second, Eastman’s own memos convict him. He wrote in one memo that he recognized that there was no validity to his theory about Pence, then turned around and pedaled it to Trump and company anyway.

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