Some say the U.S. Constitution is turning over in its grave.
Trump’s pardon of the man who critics dubbed “the architect of a coup” — former Chapman University law dean John Eastman — is just the latest example of how the rule of law doesn’t rule much anymore, said critics who sink further into despair with each passing day.
Eastman is not out of the legal woods — more on that in a minute — but his passionate defenders see this as vindication. They’ve poured close to $1 million from their own patriotic pockets to pay Eastman’s myriad legal bills, even employing the rhetoric of holy war from time to time, beseeching the Heavenly Father to defeat the “demon enemy” of Eastman.
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“I will never forget Dr. Eastman’s encouraging words to me as a charged 2020 Trump elector,” wrote Marian Sheridan, who donated $100 to Eastman, last month. “All lawfare charges against us were dismissed by a Democrat appointed judge on September 9th. I praise God for protecting us in the furnace and pray that doctor Eastman’s persecution ends soon.”
“You are a true patriot,” wrote another recent donor.
And so Eastman joins the ranks of the (federally) absolved, along with the likes of David Dempsey, who “viciously assaulted and injured police officers” on Jan. 6, 2021, and Julian Khater, who pepper-sprayed officers and pleaded guilty to two counts of assaulting police with a dangerous weapon. (These were not Subway sandwiches.) But Dempsey and Khater got their pardons long before Eastman did. It was more than four years ago that Eastman pointedly asked (also-newly-absolved) Trump attorney Rudy Giuliani for a spot on the “pardon list” … and heard crickets.
“Not every Republican lawyer who was engaged in the Trump transition issues deserves broad brush scorn, disbarment or criminal prosecution, for sure. But Eastman was quite different,” said attorney James V. Lacy of Wewer & Lacy LLP, whose conservative bona fides include serving in the Reagan and Bush administrations and as a Trump delegate in 2016. “Trump was entitled to ask questions and receive legal advice.
“He not only concocted a crazy unconstitutional legal theory on the transfer of Presidential power, a theory that had been rejected by even John Yoo, his own expert witness at his disbarment trial, but Eastman went further than just rendering what has been seen as a flawed opinion.
“According to the State Bar, he was also a highly active participant in the discredited events, speaking crazy talk about ‘hidden folders’ in voting machines to rile up the crowd at the ‘Stop the Steal’ rally, and including testifying inaccurately to the Georgia Legislature and advising others on the filing of false state electoral certification documents. This later issue is why he continues to be under criminal indictment in Georgia, where Trump’s pardon has no legal affect.”
‘Serpent in the ear of the President’
History is written by the winners, many wise folks have said, so let’s revisit what happened leading up to Jan. 6, 2021 before it disappears in a haze of peace and love.
Eastman fashioned a legal and philosophical game plan to help Trump hold on to power after he lost the 2020 election to Joe Biden. Eastman penned memos theorizing that the vice president has the power to single-handedly delay certification of a presidential election and send matters back to the states for potential do-overs. States can also send “alternate electors” (for the losing candidate) to the Capitol, he theorized, even after election results for the winner are certified by those states.
The main thing, Eastman wrote in those memos, is that then-VP Mike Pence should exercise this authority without seeking permission. “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.”
Eastman is accused of helping organize “false electors” in the Georgia and Arizona cases, and his theories were “a serpent in the ear of the President of the United States, the most powerful office in the entire world,” the then-vice president’s attorney told Eastman. Then, on Jan. 6, as the Capitol was swarmed by Trump supporters, the attorney added: “And thanks to your bull(expletive), we are now under siege.”
Federal Judge David O. Carter concluded it was “more likely than not” that crimes were committed in the attempt to stop the certification of the 2020 election. Eastman and Trump “launched a campaign to overturn a democratic election, an action unprecedented in American history,” Carter wrote. That campaign “was not confined to the ivory tower — it was a coup in search of a legal theory,” and it led to “violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in American politics….
“If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”
Eastman has always maintained he was simply acting as a zealous advocate for his client, Trump, and that he was working with the best information he had at the time.
Even though Eastman now has a Federal Deflector Shield protecting him from federal charges that might spring from his challenge the 2020 presidential election, it cannot protect him from state charges springing from same. Granted, the state cases in Georgia and Arizona are a mess, but they’re still there. And Eastman’s California law license is on ice, and his challenge to restore it before the state Supreme Court appears to be in when-pigs-fly territory.
‘Terribly sad’
Trump’s pardons seem to have shocked precisely and exactly no one, though some found it all puzzling.
“It is terribly sad, but not surprising,” said Erwin Chemerinsky, current dean of the UC Berkeley School of Law and, when he led UC Irvine’s law school, a former debate foe of Eastman’s.
“President Trump pardoned those who were part of the insurrection on January 6, while firing the prosecutors. John Eastman and others were essentially trying to stage a coup and keep Trump in office despite his having lost. Pardoning them for this is wrong, but fits President Trump’s pattern of excusing lawlessness that he likes.”
The States United Democracy Center filed a Bar complaint against Eastman way back in 2021. Now, one can almost hear its deep sigh.
“This Administration is once again misusing its power to protect their allies, disregarding the actions these people have taken to undermine our democracy,” said Christine P. Sun, a senior vice president for the organization.
“It’s a slap in the face to the officials who work so hard to k
eep our elections safe and secure. But at the end of the day, accountability still matters. Unethical behavior that violates the rule of law and undermines our free and fair elections has consequences. Look no further than California, where John Eastman still can’t practice law because of his efforts to overturn the 2020 election.”
At Chapman — where officials cringe every time Eastman’s name is linked to the university — the news elicited similar sentiments.
“My husband Christian and I, both Chapman law alumni, rolled our eyes simultaneously when we heard the news,” said attorney Bethany Everson Na. “We are shocked, shocked (insert Casablanca gif) that a president who has no regard for the law would pardon an attorney and former dean who, likewise, shares his lack of respect for the legal process. Disgusted, disappointed, but it’s par for the course for Trump.”
Fred Smoller, associate professor of political science at Chapman, teaches a “Presidential Scandals” class that includes Trump and Jan. 6. “This is very sad, but not at all surprising,” he said. “President Trump obviously puts loyalty to himself above fealty to the Constitution. During Watergate, Elliot Richardson, the Attorney General, resigned in protest rather than fire special prosecutor Archibald Cox.”
But Jon Fleischman, prolific conservative commentator via FlashReport and So Does It Matter, finds the pardon a bit puzzling. As noted, the Federal Deflector Shield does nothing to protect Eastman from still-pending state charges.
“My first reaction is to say, ‘Good for John,’ ” he said. “He has a president who’s very comfortable issuing presidential pardons, which is more of an indictment on the pardon process itself. It’s like a vestige of the divine right of kings….
“But he is not facing any federal charges. Maybe it’s prospective? I don’t know. Any federal charges related to Jan. 6 were dropped when President Trump was sworn in. This seems to be an early Christmas present that has no impact on what he’s facing at the end of the day.”
The pardon’s utility appears to be threefold, Fleischman said: It protects recipients from charges by a future U.S. Department of Justice; conveys appreciation to loyalists; and could be useful in public relations fights against state charges.
No one has a crystal ball, but we’d put money on at least one more pardon before the president leaves office: Trump’s pardon of Trump himself.
Can he do that? Untested, Fleischman points out. But Trump has made a cottage industry of doing what hasn’t been done before.