John Eastman, Trump's lawyer on overturning election, under investigation by California Bar

[Nevilledog]

https://www.latimes.com/california/story/2022-03-01/trump-connected-lawyer-john-eastman-under-investigation

Orange County attorney John Eastman is at the center of an ethics investigation into whether he violated laws while advising President Trump on how he could overturn his election defeat in 2020, the State Bar of California said Tuesday.

Eastman, a former professor and dean at Chapman University’s Fowler School of Law, emerged as a key legal advisor to Trump in the weeks after it was apparent he had lost the election to Joe Biden. Eastman wrote two legal memos that advised Vice President Mike Pence he could declare that the results in several states were disputed and therefore their electoral votes would go uncounted. Doing so would have reversed Trump’s loss.

The State Bar’s chief trial counsel, George Cardona, announced Tuesday that Eastman has been the center of an investigation since September.

“A number of individuals and entities have brought to the State Bar’s attention press reports, court filings, and other public documents detailing Mr. Eastman’s conduct,” Cardona said in a statement.

“We want to thank those who took the time to bring to our attention this information, which serves as the starting point for our investigation. We will be proceeding with a single State Bar investigation in which we will continue to gather and analyze relevant evidence and go wherever it leads us.”

*snip*

[JohnSJ]

1. About time

[lame54]

9. First thought

[Leghorn21]

2. Say, I wondered earlier today how ole Eastman's getting along

HA HA, badly, of course!!!

[LetMyPeopleVote]

3. Opinion: Lawyers at last look ready to step up and defend the rule of law

A high power group of lawyers are going after Eastman's law license

Link to tweet

In California, a group of superstar lawyers, ex-judges and former governors have sent a letter and complaint to the State Bar concerning lawyer John Eastman’s two memos setting forth a plan to overthrow the election, as well as his participation in the rally that ignited the attack on the Capitol. “We write to request that the State Bar investigate serious evidence of professional misconduct by Professor John C. Eastman in connection with his representation of former president Donald Trump in efforts to discredit and overturn the results of the 2020 presidential election,” they explain.

They revisit in detail Eastman’s two memos:

Mr. Eastman’s memoranda sought to justify a brazen power play by Mr. Trump that aimed to set aside the results of an election that had been repeatedly and authoritatively determined to be free and lawful, and to potentially install the loser of that election as a winner, based on nothing more than a false narrative that Mr. Trump had originally authored. Not only is there no support in the text of the Constitution for that extraordinary result, but it is also contrary to an unbroken chain of past practice and legislation since the enactment of the 12th Amendment and wholly unsupported by the scholarship Mr. Eastman tried to invoke to bolster his analysis, that of Professor Laurence H. Tribe.

The authors conclude:

Mr. Eastman undertook to provide the legal rationale for this extraordinary attempt to overturn the election in two memoranda, which were intended to influence Mr. Pence. The core claim of those memoranda was that it was a “fact” that the Constitution gave Mr. Pence complete and unfettered authority to prevent the counting of lawful ballots from seven select states or to postpone the count altogether. That claim was based on nothing more than the notion that the legitimacy of the election continued to be “disputed” in some unexplained fashion. That conclusion was thoroughly wrong—and Mr. Eastman knew it or was willfully blind.

The letter says Eastman also “continued this pattern of misconduct by giving the crowd at the ‘Stop the Steal’ rally on the National Mall another version of his misleading advice and stating that, by rejecting it, Mr. Pence had proved himself undeserving of his office. Mr. Eastman also made a number of false factual statements at the rally, including that there was a ‘secret folder’ of ballots on voting machines that was used to turn the election against Mr. Trump.”

[LetMyPeopleVote]

4. If this asshole takes 5th, we can use that to help disbar this asshole

Disbarment proceedings are civil proceedings and so taking the 5th can be considered
https://www.litigationandtrial.com/2013/04/articles/attorney/pleading-the-fifth-adverse-inferences/#:~:text=Thus%2C%20under%20federal%20law%2C%20a%20bar%20association%20can,who%20asserts%20a%20privilege%20and%20refuses%20to%20testify.

That’s the issue I wanted to pick up for this post: the ramifications of asserting the Fifth Amendment right against self-incrimination in civil litigation. As a bonus, we’ll discuss what an adversary can do to maximize the negative impact of that assertion on their opponent. The issue comes up more often than you’d think; we see it frequently in egregious wrongful death cases (where the defendant is trying to avoid a manslaughter prosecution), drunk driving cases, and (obviously) fraud cases. I have a handful of civil cases now where the opposing party has either already asserted the Fifth or is expected to do so.

The Fifth Amendment says that “No person. . . shall be compelled in any criminal case to be a witness against himself.” As the Supreme Court has long held, “The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. United States, 341 U.S. 479, 486-487 (1951). There are rare circumstances in which a judge can deny the privilege and then compel the testimony, but that’s highly unusual. Once you assert it, your refusal to testify cannot be used against you in criminal proceedings......

One interesting point of particular relevance to Prenda Law: As Ken notes in his post summarizing the available sanctions, when a judge notices misconduct in their court, one tool they have available is the ability to refer matters to the attorney’s state bar association. Can the silence be used against them in a disciplinary proceeding? Well, there’s a case on that in the First Circuit, involving an attorney who fraudulently concealed property during a bankruptcy, then asserted her right against self-incrimination: “While refusal to waive the Fifth Amendment might increase the risk that she would be disbarred, disbarment would not result automatically and without more. Hence, she was not threatened with a penalty within the meaning of [Garrity v. New Jersey, 385 U.S. 493 (1967)] for invoking her Fifth Amendment privilege.”

Thus, under federal law, a bar association can use the assertion of the Fifth Amendment against an attorney in a disciplinary action, so long as disbarment isn’t automatic, but some state laws preclude their state courts from drawing negative inferences against a party who asserts a privilege and refuses to testify. As two corporate defense lawyers at Gibson Dunn noted back in 2010, several states have statutes or rules of evidence that forbid courts from drawing adverse inferences after a party asserts a testimonial privilege. See, e.g., Alaska R. Evid. 512(c); Ark. R. Evid. 512; Cal. Evid. Code § 913(a); Del. R. Evid. 512; Haw. Rev. Stat. § 626-1, R. 513; Idaho R. Evid. 512; Ky. R. Evid. 511; N.D. R. Evid. 512; Nev. Rev. Stat. § 27-513; Nev. Rev. Stat 49.405; N.J. R. Evid. 532; N.M. R. Evid. 11-513; Okla. Stat. Ann. §2513; Or. Rev. Stat. § 40.290; Vt. R. Evid. 512. In those states, the court has to tell the jury to not use the silence against

[MissMillie]

5. No paywall link

https://archive.ph/TtbgX

[Nevilledog]

6. Thanks. I didn't get a paywall or I would have included it.

[MissMillie]

7. Of course you would have

I didn't notice it was you.

I just saw "latimes" in the link and assumed there would be a paywall, because for me there always is.

[Nevilledog]

8. They are very hit or miss for me.