John Eastman and the Limits of Bar Discipline

Jurecic writes that Eastman’s is only the latest case of bar discipline to result from Trump’s effort to overturn the 2020 election. In addition to the Texas bar’s case against Paxton, bar authorities there are pursuing discipline against Sidney Powellfor her role in the “Kraken” litigation. In Washington, D.C., both Rudy Giulianiand former Justice Department official Jeffrey Clark—who lobbied for Trump to elevate him to the role of attorney general in order to spearhead Justice Department efforts to keep Trump in office—are defending themselves against cases brought by the D.C. bar.

Jurecic concludes:

The California bar’s statement announcing the charges against Eastman makes clear that the bar understands the case as part of a broader effort to protect democracy and show that behavior like Eastman’s is unacceptable. “For California attorneys, adherence to the U.S. and California Constitutions is their highest legal duty,” said Chief Trial Counsel George Cardona, describing how Eastman allegedly “violated this duty in furtherance of an attempt to usurp the will of the American people and overturn election results for the highest office in the land—an egregious and unprecedented attack on our democracy—for which he must be held accountable.” And it’s welcome to see state bars take on the responsibility of disciplining their members for attempting to overthrow the results of a free and fair election. (If you’re interested in more on this, I’m currently working on a longer essay about the role of professional discipline in pushing back on political lies, which should be published soon by the Knight First Amendment Institute.)

Yet there’s a limit to what bar discipline can accomplish when it comes to accountability. Only a small number of attorneys are currently facing discipline, despite the many lawyers who signed on to cases seeking to somehow interfere with the counting of the vote in 2020 or who otherwise played a role in the insurrection. Consider Texas v. Pennsylvania, in which 17 Republican attorneys general signed on as amici; none of those 17 state bars has so far taken any public action for these lawyers’ propagation of election lies before the Supreme Court, despite the case against Paxton. Perhaps these state bars are investigating, but because such probes are typically confidential, there’s no way to know. Similarly, Judge Linda Parker of the U.S. District Court for the Eastern District of Michigan referred Powell and the rest of her legal team to their respective state bars for investigation over misconduct in the Michigan “Kraken” case, yet only Powell has faced charges. 

And bar discipline takes time. Eastman is only now facing potential disbarment over actions he took two years ago. The Texas and D.C. discipline cases were brought over a year after the conduct in question. Of course it takes bar investigators time to build a case—but by now, the “big lie” propagated by these lawyers has become an integral part of American politics. The California bar seeks to discipline Eastman in part for seeking to “encourage the general public to question the legitimacy of the election results,” but it’s far too late to repair the damage done.

In fact, Eastman, Powell, and the others have turned the persistence of the big lie into an asset while defending themselves against bar discipline. Rather than acknowledging that their claims of election fraud were built on lies, these lawyers have dug in further. Responding to the D.C. bar charges against him, for example, Giuliani repeatedly cited the widely debunked election-fraud documentary “2,000 Mules.” A press release that Eastman posted on his Substack insists that the 2020 election was “fraught with illegality and serious allegations of fraud.”

Almost uniformly, they’ve presented themselves as martyrs of a politically motivated witch hunt. Eastman’s press release announces, “The complaint filed against Eastman that triggered today’s action by the State Bar is part of a nationwide effort to use the bar discipline process to penalize attorneys who opposed the current administration in the last Presidential election.” Likewise, Paxton took a confrontational posture against the Texas bar, declaring, “I’ll see you and the leftists that control you in court.” Powell has argued in court that the bar complaints against her were filed by individuals who “seek to intimidate, harass, and suppress the ability of public officials or individuals to secure legal representation when they had evidence of election fraud.” Clark, for his part, has developed a combative, hard-right Twitter presence at odds with the New York Times’s description of him during his time in the Justice Department as “quiet, hard-working and detail-oriented”: His pinned tweet reads, “My name is Jeff Clark, hated by the Left.” 

All this is unlikely to endear this little band to the state bars seeking to discipline them. But that’s not the point. The community of people who believe in the big lie is sufficiently large and entrenched enough that bar discipline—even disbarment—may not matter if lawyers can successfully situate themselves within the cozy confines of the pro-Trump media and political ecosystem. They can keep appearing on Fox News or, as in the case of Giuliani, hosting a radio show. They can win political office with support from Republican voters who are either enthusiastic about their election denialism or simply don’t care: Paxton won a third term as Texas attorney general even after the bar announced its case against him. They can raise money, too: Both Clark and Eastman have set up fundraising pages on GiveSendGo, a GoFundMe alternative that identifies itself as “made by Christians” and has been used by the Proud Boys.

From here, Eastman’s case will proceed to California’s State Bar Court, which hears discipline cases brought by the state bar against California lawyers. Eastman will soon have an opportunity to file a response to the bar’s notice of charges. Something tells me that he’s unlikely to be particularly contrite.