Will the real John Eastman please stand up?

Just who is John Eastman?

Legal scholar. Co-conspirator. Mild mannered. Political animal.

John Eastman has been alternatively described as each since he transmogrified from a relatively anonymous, dial-a-quote law professor in Orange County to one of the supposed masterminds of Donald Trump’s Hail Mary ploy to hold onto the presidency.

In the years since January 6, 2021, Eastman and his once-sterling reputation have been irrevocably tarnished, putting both his career and freedom in jeopardy.

After serving for more than two decades as a law professor at Chapman University, where he not only did a stint as the dean of the law school, but also secured tenure, Eastman resigned when more than 150 members of the faculty and the board of trustees signed a letter arguing that his actions should disqualify him from continuing to teach.

In late January 2023, the State Bar of California charged Eastman with multiple counts of misconduct; a trial seeking his disbarment has been proceeding on and off since June. In early August, special counsel Jack Smith identified Eastman as “co-conspirator 2” in his indictment of Trump for four felonies, including conspiring to defraud the United States.

John Eastman has been alternatively described as a brilliant legal scholar, a mild-mannered political animal and co-conspirator in a plot to illegally overturn an election.

Then, in mid-August, Eastman was indicted alongside Trump and 17 others in Fulton County, Georgia for allegedly scheming to illegally overthrow the 2020 election. Eastman surrendered to Fulton County jail on August 22, where he had his mugshot taken – a sad, washed-out image where a white-haired Eastman looks wide-eyed in a grey suit jacket – and posted bond for $100,000.

Eastman faces not only the loss of his license to practice law, but also a mandatory minimum of five years in a Georgia prison.

As one of the pivotal figures who has emerged from what many call an attempted coup, Eastman has been the subject of several in-depth profiles, including in the Washington Post and Washington Monthly. Those  stories have detailed his rise in conservative politics, his work for the U.S. Commission on Civil Rights during the Reagan administration, and his relationship with U.S. Supreme Court Justice Clarence Thomas, who Eastman clerked for in 1996 after graduating from the University of Chicago law school.

At this point, Eastman’s resume has been thoroughly vetted. Yet, a critical question still remains: How did an apparently sober-minded academic become involved in what’s described as one of the most brazen and audacious attacks on American democracy?

Was Eastman always the sort of political firebrand who would allegedly do anything to keep his party in power?  Or was the soft-spoken denizen of the ivory tower somehow corrupted or even conned by Trump?

Or, is he actually the victim of prosecutorial overreach, collateral damage in the Democrats’ ceaseless campaign to defeat Trump at all costs?

Capitol Weekly attempted to find out.

Clearly, Eastman wanted to be a part of contemporary politics from the very beginning. But he didn’t really establish a brand for himself until Proposition 8, the gay-marriage ban, came around in 2008.

By the end of 2007, about eight years after he started at Chapman, Eastman had carved out for himself a sizable, if not particularly memorable, footprint in the news media. An old Eastman CV from one of his many Congressional testimonies documents more than 388 media appearances he made and Op-Eds he published from the beginning of 2000 through the end of 2007.

That means, on average, he appeared in the media roughly once a week over those seven years.

Those figures don’t include a weekly appearance Eastman did on The Hugh Hewitt Show with then-UC Irvine Law School Dean Erwin Chemerinsky, or the more than 35 scholarly publications he participated in or the more than 135 speeches and debates he took part in during those seven years.

Obviously, Eastman put himself out there – a lot – on a whole range of issues, from the Bush v. Gore battle to climate change to racial profiling to guns. But you can’t necessarily draw any conclusions about Eastman from that, even with activity at that scale.

That’s because appearing frequently in the press isn’t unusual for a law professor.

As a contemporary of Eastman told Capitol Weekly, many serious legal scholars strategically decide to immerse themselves in popular political debates as a way to advance their careers. (In fact, Eastman kept up his pace of media appearances late into his career at Chapman.)

Clearly, Eastman wanted to be a part of contemporary politics from the very beginning. But he didn’t really establish a brand for himself until Proposition 8, the gay-marriage ban, came around in 2008.

A devoted Catholic, Eastman got deeply involved in Prop. 8, most prominently in defending the initiative after it was approved by voters in November 2008. Soon, Eastman’s name was appearing in the news in connection with Prop. 8 constantly.

Two years later, in 2010, Eastman ran for California Attorney General. Garrett Epps, a law professor who once considered Eastman a friend, wrote in his Washington Monthly profile of Eastman that Eastman told him that “he felt called to make that race because California’s then attorney general, Jerry Brown, had refused to defend Proposition 8.”

Eastman, of course, lost in the primary, in a general election that Kamala Harris eventually won. Frank Schubert was Eastman’s campaign consultant on that race and worked with him at the National Organization for Marriage, a nonprofit devoted to stopping the legalization of gay marriage.

Schubert said he first encountered Eastman during the Prop. 8 fight and found him to be “a brilliant guy. Soft spoken, unassuming.”

Schubert said they bonded over their shared Christian faith and could talk about anything, “from soup to nuts.” He said Eastman has a wide range of interests, including music and theater, particularly independent productions.

Most impressively, Schubert said, Eastman possesses a near-photographic memory, allowing him to debate the intricacies of the U.S. Constitution off the cuff, or cite case law, chapter and verse. Schubert described Eastman as ever principled and measured, charming and bright.

“He’s not one given to a lot of bombast,” Schubert said. “He’s a calm, deliberate guy.”

“It was clear he was a small-time, petty, unethical fraud.”

Republican campaign consultant Kevin Spillane has a very different take on Eastman.

Spillane oversaw Los Angeles County District Attorney Steve Cooley’s 2010 bid for Attorney General. Cooley defeated Eastman by nearly 13 percentage points in the Republican primary for the privilege of facing Harris in the general election.

Despite her obvious advantage as a Democrat running statewide in California, Harris only narrowly defeated Cooley by a little more than 74,000 votes – less than 1 percentage point. (People forget these days how differently the vice president’s political career could have gone.)

Harris’ big hit on Cooley during the race was attacking him for his intention to “double dip” by taking his county pension and the attorney general salary of $150,000. That line of attack was first brought up by Eastman in the primary.

But Spillane told Capitol Weekly that Eastman directly contributed to Cooley’s narrow loss to Harris in other ways as well.

Inaccurate polling before the primary showed Eastman and Cooley running neck and neck with a third Republican candidate, then-Orange County State Sen. Tom Harman. As a result, Spillane said, Cooley had to spend a lot more on the primary than he had wanted, which threw his campaign into debt heading into the general, making it hard for him to mount a challenge against Harris.

Eastman ran to the right of Cooley, who was perceived as a more liberal Republican, and tried to ride the Tea Party wave of conservatism. It ultimately didn’t work, of course. But Spillane said Eastman tried to employ some nasty tricks to gain an advantage.

For one thing, Eastman tried to get listed on the ballot as “Assistant Attorney General,” because he did some contract work for the South Dakota Attorney General’s Office. So, Cooley’s campaign had to take him to court and get the designation struck down. (Cooley also had to sue to stop Harman from calling himself as “Prosecutor” on the ballot because he did some volunteer work for the Orange County District Attorney’s office.)

That, in part, contributed to Cooley having to invest more into the primary than originally intended, Spillane said. Cooley’s campaign had to spend tens of thousands of dollars fighting those ballot designations, he said.

“It was clear he was a small-time, petty, unethical fraud,” Spillane said of Eastman.

Another thing that irked Spillane was that the word on the street among Republicans during the 2010 AG primary was that Eastman would drop out of the race if he didn’t raise at least a million dollars. Eastman didn’t, but he didn’t drop out of the race, either.

“That was one example of him not being honorable,” Spillane said.

Indeed, Eastman only ended up raising a little more than $600,000, from a pool of donors that included several professors from across the country. Capitol Weekly reached out to a dozen of them. None of them had much of anything to say about Eastman.

Kyndra K. Rotunda, a professor of military and international law at Chapman who donated $1,000 to Eastman’s campaign, emailed Capitol Weekly, “I’ve always known John to be collegial, kind and deliberative. Under his leadership, our law school ascended into the top tier for a good while. And, like most lawyers, John is willing to explore novel legal theories and to consider things from various points of view.”

University of San Diego law professor Gail Heriot, who also contributed $1,000 of Eastman’s AG campaign, wrote, “John Eastman visited here at USD for a semester, and I’ve known him for years. I have never known him to be anything but a gentleman and a scholar.  I can’t claim to know all the facts of this situation, but I suspect that when the dust settles it will be clear that John was simply zealously representing his client based on the facts as they were understood at the time.”

Henry Butler, now at George Mason University, gave a total of $2,250 to Eastman’s campaign when he was at Northwestern University. “No comment,” he replied when asked about Eastman.

“I’ve always known John to be collegial, kind and deliberative. Under his leadership, our law school ascended into the top tier for a good while. And, like most lawyers, John is willing to explore novel legal theories and to consider things from various points of view.”

In August 2020, Eastman penned an opinion column for Newsweek in which he argued that his old rival for the AG’s office, Kamala Harris, was ineligible to be vice president – let alone a U.S. Senator – because her parents, immigrants from Jamaica and India, were “merely temporary visitors” to the United States. It was widely mocked, as both outlandish and wrong.

Newsweek later apologized for running the column, which to many smelled much like Trump’s birther crusade against President Obama. But shortly after the column ran, Eastman was brought aboard Trump’s 2020 campaign to volunteer for its “Election Integrity Working Group,” which was gearing up to fight for an election that hadn’t even occurred yet.

In early, December 2020, Eastman formally signed on as counsel for Trump and his campaign to handle their election challenges. In this role, Eastman wrote the two so-called “coup memos” for which he’s now become infamous. These memos laid out the scheme for Vice President Mike Pence to reject electoral votes – in other words, the meat of the case against Eastman.

The first memo, just two pages, had no addressee, designated author or date. It was simply titled, “January 6 scenario,” and opens, “7 states have transmitted dual slates of electors to the President of the Senate.” This statement has been roundly criticized as well because no state actually sent to Congress more than one slate of electors.

But that’s almost beside the point.

The first memo doesn’t name the supposed seven states with dual slates, but they’re revealed in the second, six-page memo: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin. Those states ultimately cast 84 electoral votes for Joe Biden.

Had Trump somehow acquired some combination of 38 votes from those states, he would have been re-elected president. So, you can see their importance to the Trump campaign.

Taken together, Eastman’s two memos basically assert that the vice president has the legal authority to throw out electoral votes from any state that has submitted multiple electoral slates – regardless of who actually submitted the slates to Congress.

Joseph Bessette, a professor emeritus of government and ethics at Claremont McKenna College and a “friendly” acquaintance of Eastman, effectively calls this theory absurd in a Fall 2021 analysis in the Claremont Review of Books. Bessette wrote that Eastman’s idea would allow “any group of proposed Trump electors” to submit their votes to Congress, even in states where Biden was the certified victor – and that alone would be enough for the vice president to exclude the states from the electoral count.

The significance of what Eastman proposed might not be immediately clear. If his theory were legal, any old group of Trump electors could submit a slate of votes for Trump to Congress, regardless of what the state officially submitted. That, in turn, would allow the vice president to throw out the electoral votes from that state, thereby reducing the total number of electoral votes needed to become president.

If that happened in the case of the seven states named in the second memo, the total number of electors for president would be reduced from 538 to 454. (That is, 538 minus 84.) To become president, you only need to capture a majority of the electoral votes.

With 538 electoral votes, you need 270 to win. But with the number of electoral votes reduced to 454, you only need 228.

Trump received 232 uncontested electoral votes.

If Pence rejected the electoral votes from the seven states, Trump would have had enough votes to be re-elected president. Game over.

But Bessette wrote that Eastman’s theory can’t possibly make sense. He asked, are we supposed to believe that if just anyone from a state submits a slate of electors, then the vice president can simply refuse to the acknowledge the officially certified vote of that state and then give the electoral victory to the vice president’s preferred candidate?

Keep in mind, Bessette noted, the sitting vice president could be running for the presidency. How could the vice president possibly have the unilateral authority to give himself or herself the presidency?

“One doesn’t have to be a scholar of the American Founding, a professor of constitutional law, or an expert in election law to know that this simply cannot be right,” he wrote.

If Pence rejected the electoral votes from the seven states, Trump would have had enough votes to be re-elected president. Game over.

Eastman, as you might expect from a legal scholar who some describe as nerdy or awkward, has tried to vigorously defend his memos. Responding directly to Bessette in his own piece in the Claremont Review of Books, Eastman wrote that the points made in his memos are “grounded in prior scholarly analysis and/or historical evidence.”

In other words, Eastman insists his memos merely describe a novel legal theory, not election fraud and racketeering, as alleged by Fulton County District Attorney Fani Willis.

This is why Frank Schubert, Eastman’s campaign consultant on the AG race, thinks the Fulton County case is “BS,” because he said it tries to criminalize scholarly debate. Schubert, who says he’s still in contact with Eastman, said the conservative legal movement is small; Eastman would be on a short list of people Republicans might turn to for advice.

He said Trump – at the time, the sitting president – asked Eastman for help. He said Eastman had no outside relationship with Trump. Schubert couldn’t even say whether he thought Eastman and Trump would get along personally outside of politics. But the fact is, the leader of his party came to him specifically for help, Schubert said.

“Why would he say no to that opportunity?” he mused. “Why would anybody?”

No, Schubert said, Eastman is just a casualty party politics, of the Democrats’ never-ending crusade to crush Trump. That’s what’s really going on here, he insisted.

“They hate Trump,” Schubert said, while also acknowledging that Trump is a “complicating subject” and not someone he finds particularly likable himself. But he added that Republicans weren’t electing someone for their personality, but for their policies.

“Trump probably did more for conversative policy than Reagan ever did,” Schubert said. He said Eastman shouldn’t be persecuted for sincerely trying to defend, and further, conservative policies and ideology. “It’s such BS that this guy is in this position,” Schubert said.

Kevin Spillane, the campaign consultant for Eastman’s AG opponent Steve Cooley, scoffed when he heard Schubert’s take. Not only did he say Trump was a “disaster” for conservative policies, but he said Eastman “was obviously central” to Trump’s scheme to overthrow the government.

“This is a very cynical, unethical person,” Spillane said of Eastman. He said he finds it ironic that people tout Eastman as some kind of serious legal scholar when, in fact, he believes Eastman doesn’t actually follow the law.

“This is a guy who obviously doesn’t respect the electoral process,” Spillane said.

Of course, Trump’s outrageous persona, and the storming of the Capitol on January 6, undoubtedly color any reading of the charges. But those going after Eastman clearly made it a point to accuse him of specific actions he took in the real world, not just musings in some memos.

The two “coup memos” are at the core of the allegations against Eastman, but the charges against him expand far beyond the fact that he just wrote them. The Fulton County District Attorney and the State Bar of California both allege that Eastman knowingly perpetuated the falsehood, publicly and privately, that the election was stolen and actively pressured others to go along with his plan to reject electors.

The Fulton County DA, for example, said that on December 31, 2020, Eastman and Trump “knowingly filed” a document in Trump v. Kemp, one of the lawsuits seeking to challenge the election results. The DA said the filing contained materially false statements about election improprieties – statements Eastman later admitted in an email to the Trump campaign that “at least some of the allegations in the verified complaint were not accurate.” The DA also accuses Eastman, among other things, of calling Rusty Bowers, the Speaker of the Arizona House of Representatives and pressuring him to “unlawfully appoint presidential electors from Arizona.”

The Bar, meanwhile, noted that on January 2, 2021, Eastman appeared on Steve Bannon’s radio program, Bannon’s War Room, where he asserted there was “massive evidence” of absentee ballot fraud, “most egregiously in Georgia and Pennsylvania and Wisconsin.” It also alleges that Eastman misinterpreted the historical record and the law in his memos.

These are just a handful of the allegations enumerated against Eastman, but they paint a strikingly different picture than that of a legal scholar merely advancing a novel legal theory. Rather, they describe an active participant in what’s portrayed in court filings as a conscious, coordinated, purposeful scheme.

Of course, Trump’s outrageous persona, and the storming of the Capitol on January 6, undoubtedly color any reading of the charges. But those going after Eastman clearly made it a point to accuse him of specific actions he took in the real world, not just musings in some memos.

Eastman, for his part, continues to insist he has done nothing wrong. On the website GiveSendGo, he’s set up a page to raise money for his legal defense and occasionally posts updates.  After he was booked into Fulton County jail, which he called “Quite a travesty,” Eastman complained that the news coverage “has been extremely skewed” and claimed that all he ever tried to do was facilitate an investigation of alleged voting irregularities, irregularities Pence himself had described.

“Doing that is speech and petitioning the government for redress of grievances fully protected by the First Amendment of the Constitution,” Eastman wrote on his GiveSendGo page. “But the narrative being foisted on us by the left and by the anti-Trump right doesn’t care about constitutional rights, free and fair elections, presumption of innocence, or any of those other basic components of our system of government.”

These are just a handful of the allegations enumerated against Eastman, but they paint a strikingly different picture than that of a legal scholar merely advancing a novel legal theory.

In 2018, Eastman and his wife relocated full time to a vacation home they own in Santa Fe, N.M. Capitol Weekly tried to reach him there, and through his attorneys representing him in Georgia and California, where his bar trial is scheduled to continue in Los Angeles this week and next.

Charles Burnham, Eastman’s attorney in the Fulton County case, said in an email, “I’ll talk to our guys and get back to you thanks,” but never, in fact, got back to Capitol Weekly.

Eastman, meanwhile, was recently interviewed on Fox News, where Laura Ingraham asked him “On January 6th, what did you want to happen, and how was that historically grounded? In the history of our country, how would that have taken place? Just so that viewers can understand what would have unfolded, and how that would have ultimately been constitutional.”

“Several things,” Eastman responded. “Some people had urged that Vice President Pence simply had power to reject electors whose certification was still pending in legal contexts.”

“I don’t believe that, but go ahead,” Ingram said, talking over Eastman. “I don’t believe that. That’s one thing I don’t agree with.”

“And I don’t either,” Eastman said. “And I explicitly told Vice President Pence in the Oval Office on January 4, that even though it was an open issue, under the circumstances we had, I thought it was the weaker argument, and it would be foolish to exercise such power, even if he had it.

“What I recommended, and I’ve said this repeatedly, is that he accede to requests from more than 100 state legislators in the swing states, to give them a week to try and sort out the impact of what everybody acknowledged was illegality in the conduct of the election.”

The interview circulated on social media, with attorneys and others commenting that with these statements Eastman admitted to federal crimes by trying to impede the certification of electors.

Attorney Bradley P. Moss of the Washington, D.C. law firm Mark S. Zaid, P.C., posted a clip of the interview and tweeted, “He literally just confessed to the crime.”

User @aeroladyny responded to Moss: “He’s an attorney. He obviously forgot he has the right to remain silent.”

Last Tuesday, Eastman pleaded not guilty to racketeering charges in the Fulton County case.