At a critical hearing last week in the California bar proceedings, designated legal expert Matthew A. Seligman submitted a 91-page report, which I have obtained from the state bar, that strips away any “colorable,” or legally plausible, defense that Eastman was acting in good faith in rendering advice to the now four-times-indicted former president Donald Trump.
This report has serious ramifications for Eastman’s professional licensure and his defense in Georgia. Moreover, his co-defendant and co-counsel in the alleged legal scheme, Kenneth Chesebro, who has employed many of the same excuses as Eastman, might be in serious jeopardy in his Oct. 23 trial. (Another lawyer, Sidney Powell, also requested a speedy trial.)
In his report, Seligman addressed whether “the legal positions advanced by Dr. John Eastman in relation to the counting of electoral votes for the 2020 presidential election” were reasonable. Specifically, he assessed whether — as Eastman, Chesebro and others posited — Mike Pence, as vice president, had “unilateral authority to resolve disputes about electoral votes or to take other unilateral actions with respect to the electoral count” or could “delay the electoral count for a state legislature to take action with respect to a state’s electoral votes and whether a state legislature may lawfully appoint electors after the electoral count commences.”
Seligman reviewed the 12th Amendment, the Electoral Count Act of 1887 and “centuries-long practice by Congress” to find that the Eastman positions were so devoid of support that “no reasonable attorney exercising appropriate diligence in the circumstances would adopt them.” In essence, Seligman strips away the pretense that Eastman (and, by extension, Chesebro) engaged in routine legal work.
Seligman’s report echoes the finding of U.S. District Court Judge David O. Carter, who, in a matter concerning Eastman’s claim of attorney-client privilege to protect documents from the Jan. 6 House select committee, found that it “more likely than not” that Eastman and Trump had engaged in criminal activity.
If one follows Seligman’s legal and historical analysis, one must conclude Eastman and his legal cohorts (including co-defendant Chesebro) likely knew that their “advice” was beyond the pale. “The historical record conclusively demonstrates that the President of the Senate holds no unilateral power to take any substantive action with respect to the electoral count,” Seligman wrote. “In particular, the President of the Senate holds no unilateral power to reject electoral votes, to resolve disputes about the counting of electoral votes, or to delay the counting of electoral votes.” He concludes, “Dr. Eastman’s decision to advance those unfounded legal positions as part of an attempt to reverse the lawful result of a presidential election violates fundamental precepts of American democracy.”
In oral testimony, Seligman reiterated: “No vice president in American History has ever rejected a single slate of electors.” He likewise confirmed that no vice president had ever delayed the congressional proceeding for any reason.
Seligman’s damning report might well determine the outcome of Eastman’s bar proceedings. However, the implications of the report extend well beyond Eastman’s law license. For example:
- If Eastman engaged in a bad-faith scheme to overthrow the election, then he (and presumably other co-defendant lawyers) lacked any colorable defense under federal law and therefore cannot remove their case to federal court.
- If Eastman engaged in a bad-faith scheme to overthrow the election, none of his or other lawyers’ conversations are protected under the ambit of the First Amendment any more than a memo explaining how to break into a bank would be.
- If Eastman engaged in a bad-faith scheme to block the certification of the election, then one could conclude he and others in the alleged “criminal enterprise” had the requisite criminal intent for state charges including a state racketeering charge.
The significance of stripping away the legal plausibility of the cockamamie scheme to undermine our democracy cannot be overstated. Consider how Seligman’s conclusion shatters not only Eastman’s but also Trump’s most likely defenses.
Trump’s claim of absolute immunity under Nixon v. Fitzgerald requires that his alleged conduct be within the “outer perimeter” of the president’s “official responsibility.” If the entire scheme was not even legally plausible, then certainly Trump’s maneuvering (plus the lack of any constitutional role for the president in certification) must fall outside the outer perimeter of his responsibilities.
Likewise, Trump’s defense under the Supremacy Clause (In re Neagle) also collapses if you follow Seligman’s reasoning. A massive report on Georgia liability by the Brookings Institution explained:
The federal official is not immune from state criminal prosecution “simply because of his office and his purpose,” but instead must meet two conditions: 1) the federal official must have been engaged in conduct authorized by federal law or the Constitution; and 2) the official must have done no “more than what was necessary and proper” to effectuate his federal duty. In other words, a federal officer must actually act pursuant to federal authority, and their conduct must bear an objectively reasonable relationship to achieving a federal goal.
Trump’s engagement in a patently unreasonable scheme would deprive him of the protection of the Supremacy Clause.
And should Trump try to follow other defendants attempting to move the case to federal court, the Seligman analysis would destroy the basis for that request. Under the federal officer removal statute, he could not have acted under “color of office” nor have a colorable federal defense (e.g., absolute immunity, First Amendment, Supremacy Clause). He would have to defend his case in state court.
One additional point is critical: If Eastman’s scheme was patently absurd, a Trump defense based on “advice of counsel” (requiring reasonable advice) would be invalid, especially when a fleet of other attorneys made clear the scheme was illegitimate.
These defenses will soon be tested in Georgia in the Chesebro case. In less than two months, the criminal justice system could render the first decision on whether the defenses offered by these lawyers and their client, Trump, will hold water. (And if these are issues of law, the judge could dispense with them before Trump’s case gets to a jury.)
In short, if Seligman is right, Eastman’s legal goose — as well as Chesebro’s and Trump’s — might be cooked.
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