On the day before rioters stormed the U.S. Capitol in 2021, Orange County law professor John Eastman was trying to convince Mike Pence’s attorney that the vice president possessed a power that none of his predecessors had ever exercised in American history.
Eastman was in Washington, D.C., in his capacity as a legal advisor to then-President Trump. He argued that Pence, as president of the Senate, could unilaterally reject electoral votes from seven contested states in which fraud was alleged, according to Gregory Jacob, who was Pence’s chief counsel at the time.
Jacob said the vice president had flatly dismissed the idea as unconstitutional. “From our very first discussion he indicated that it didn’t make sense to him that he would have that authority,” Jacob said, testifying remotely last week before the California Bar Court in Los Angeles at a trial to determine whether Eastman should keep his law license.
Even Eastman conceded that the Supreme Court would likely reject the theory unanimously, Jacob said. However, Eastman continued to argue that Pence had the power to delay the vote certification, which Jacob believed helped fuel the violence on Jan. 6. He said rioters were driven by the false notion that “a momentous decision” to determine the presidency lay in Pence’s hands that day.
“I’ve seen the video footage of them shouting ‘Hang Mike Pence,’ ” Jacob said. “The vice president was my boss.” He said the rioters “believed the vice president had authority to decide the election in favor of President Trump, or at minimum head things in that direction.”
It was one thing, Jacob suggested, to float a far-flung academic theory in the safety of a law review article. It was another to invoke the theory while advising the president at a fraught national moment.
“I was offended for my profession,” Jacob said. “I thought that it brought our profession into disrepute.”
Jacob was one of several witnesses called by the California Bar as it mounted its case against Eastman. Among them were election officials from Arizona, Pennsylvania and Nevada. The officials detailed audits, tabulation-machine tests and other steps to ensure the integrity of the vote count in their states, which Eastman had derided as tainted.
Eastman, a former dean and professor at Chapman University law school, has been on and off the witness stand himself, his manner unapologetic and defiant under sharp questioning from Bar attorney Duncan Carling.
In the aftermath of the election, Eastman made the case that contested states, where Biden had been declared the winner, had the power to decertify electors and pick pro-Trump alternates.
When Carling asked what effect such a plan would have had, if adopted, Eastman replied: “It’s uncharted territory.”
The State Bar accuses Eastman of ethics violations for attempting “to obstruct the electoral count on Jan. 6” by pressuring Pence to reject electors, promoting false claims that electoral cheating cost Trump the election, drumming up slates of bogus electors, and fueling the mob with falsehoods.
Eastman’s defense is that he was exercising his 1st Amendment rights and acting as a vigorous advocate for his client, Trump. He maintains that he shouldn’t be penalized for advancing a legal theory that a reasonable lawyer might consider viable.
The Bar trial is expected to continue at least through this week. Eastman faces trouble beyond the prospect of losing his license to practice law.
When Eastman appeared before the House Jan. 6 committee, he repeatedly invoked his 5th Amendment right against self-incrimination. The FBI has seized his phone, and the committee has recommended that the Department of Justice consider prosecuting him for “obstruction of an official proceeding” and “conspiracy to defraud the United States.”
U.S. District Judge David O. Carter has ruled that Eastman “more likely than not” committed crimes in connection with the 2020 election. In addition, Eastman is a possible target of a criminal probe related to the alternate-elector scheme in Georgia.
Testifying at Eastman’s Bar trial last week, Jacob, the vice president’s former lawyer, said Pence did not waver in his view that Eastman’s reject-the-electors proposal was baseless. Jacob said that no vice president in American history had ever exercised such authority, or expressed belief that he possessed it.
Jacob said Pence never believed that the constitutional framers — with their zeal for checks and balances, and loathing of King George III’s one-man rule — would want such power in one person’s hands. Instead, Jacob said, Pence saw his vote-counting role as “ministerial.”
Jacob said there were voter “irregularities” in various states but no evidence they were large enough to have tilted the election.
In the run-up to the vote-count on Jan. 6, Trump repeatedly suggested that Pence had the power to keep him in office by sending the vote back to the states. “If Vice President Mike Pence comes through for us, we will win the Presidency,” Trump tweeted on the night of Jan. 5. “Mike can send it back!”
Violence erupted on Jan. 6 in Washington soon after Eastman spoke at a “Stop the Steal” rally there, and as part of their case, attorneys for the California Bar are pointing to emails exchanged between Eastman and Jacob that day.
“I share your concerns about what Democrats will do once in power,” Jacob wrote. “I want election integrity fixed. But I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a result oriented position that you would never support if attempted by the opposition, and essentially entirely made up. And thanks to your bullshit, we are now under siege.”
Eastman replied that there was “compelling evidence that the election was stolen,” and blamed “the siege” on Pence not doing “what was necessary.”
Jacob apologized for his “unbecoming” language, but added that Eastman’s advice had been “a serpent in the ear of the president of the United States.” He said it had been “gravely irresponsible for you to entice the President with an academic theory that had no legal viability.”
Jacob asked Eastman whether he had informed Trump that Pence lacked the power to decide the election unilaterally — a claim Trump and his surrogates had been making publicly.
Eastman replied that yes, he had so informed Trump, but added: “You know him — once he gets something in his head, it is hard to get him to change course.” Eastman added: “When this is over, we should have a good bottle of wine over a nice dinner someplace.”