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[RUSH TRANSCRIPT BELOW] John Eastman is founding director of the Claremont Institute’s Center for Constitutional Jurisprudence. He is also a former law professor at Chapman University’s Dale E. Fowler School of Law and served as a law clerk for Supreme Court Justice Clarence Thomas in the 1990s. He has represented over a dozen parties before the U.S. Supreme Court.

His life took a sharp turn when he helped President Donald Trump challenge the integrity of the 2020 election results.

He is facing disbarment and criminal charges in Georgia and Arizona. He has pleaded not guilty.

Views expressed in this video are opinions of the host and the guest, and do not necessarily reflect the views of NTD.

RUSH TRANSCRIPT
Jan Jekielek:

John Eastman, such a pleasure to have you on American Thought Leaders.

Thanks very much for having me. I’m looking forward to this discussion.

Let’s talk about what’s called the Eastman Dilemma, of course, the name of a film, of which you’re a central character. But what is the status of the realities around the Eastman Dilemma right now?

I want to first point out that with the Eastman dilemma title, I never had any dilemma. I had lots of evidence of illegality in the 2020 election, and I wanted to stand up and try to shine a light on that. The dilemma in the title of the documentary, I think, is for my colleagues in the legal profession. Are they going to stand by and let the lawfare attacks against me and others go on unchallenged, or are they going to stand with me to fight against it? That’s where the dilemma is.

You know what’s really interesting? Like, I thought the dilemma was something different. I thought the dilemma was, as a lawyer, when faced with the reality of lawfare that might happen to you, do you take the case? Do you go for it? I thought that was the dilemma. That may well be. And I never had any dilemma about that.

So that’s why I say I think the dilemma for my colleagues in the profession is, what do they do? And it’s very clear that the groups that are bringing the bar challenges and urging the criminal prosecution of Trump’s lawyers for challenging illegality in the 2020 election are very clear that they want to not only disbar all these lawyers but also send such a message to other lawyers that nobody will ever take on these kinds of cases again. And so the real dilemma is going to be, are you willing to stand up for truth?

Look, we’ve had a history in our legal profession in this country, a celebrated history, going back to John Adams representing the British soldiers of the Boston Massacre. He was roundly attacked for that, but he stood for the principle that everybody is entitled to representation. We’ve lost that in recent years here, and I think the dilemma is for my colleagues in the profession: are they going to recover that noble aspiration of the law?

Everybody’s entitled to legal representation, and there are way too many people that are either cowering under the threats or joining with the people making the threats. What they’re trying to do is silence one side of an adversarial system and impose on us a government narrative in the election cases—that the election was perfect, nothing to see here—and that anybody who dared challenge it will be targeted. And the end result of that will be a skewing of the adversarial system of justice.

We have an adversarial system under the theory that if you have strong advocacy on both sides, that’s one way to get to the truth. If you shut out and silence one side, all you have is a government narrative with nobody willing to stand up and say that narrative is false. As I say in the film, I sometimes feel like the little boy being the only one willing to stand up and say the king has no clothes.

If nobody’s willing to stand up and challenge a blatantly false narrative, it takes root and all of a sudden takes on the mantra as if it’s true. The rule of law requires that we aim, in this adversarial system, to get to the truth. And if you cut that out, what you’re left with may not be the truth. In fact, it’s very likely not going to be the truth.

Let’s go back to the 2020 election. Let’s dare to a little bit, and let’s just talk about what right now, looking back, were the things that needed to be assessed?

Article II of the federal Constitution makes very clear that the power to direct the manner in which presidential electors are chosen is vested exclusively in the state legislatures. And throughout the first third of our nation’s history, most of the states chose the electors by the legislature themselves. Eventually, they went to popular vote, but that meant that the election code became the manner for choosing those presidential electors that the legislature had adopted.

And what we saw in 2020, in a number of instances in the swing states, is that non-legislative officials—county clerks, secretaries of state, even lower court judges—altered the rules of the election code without legislative approval. And that meant the presidential election was conducted in a manner not authorized by the legislature. And that made it illegal. At that point, the question becomes, was the illegality so great that it affected the outcome of the election? Now, in my view, whether it affected the outcome of the election or not didn’t matter. It was still an unconstitutional election, and the power devolved back to the legislature to decide what to do about it.

But this is in certain states. This isn’t everywhere, just to be clear.

Yes, in certain states. And they were all the swing states, unsurprisingly; Pennsylvania, Michigan, Wisconsin, Georgia, Arizona to an extent, and Nevada. Things like changing the rules about the deadline for returning absentee ballots or changing the rules about requiring voter identification copies in mail-in ballots in order to validate them, or having witnesses swear under oath that the person submitting that ballot is who they say they are. Those rules were changed by county officials or secretaries of state without legislative approval, and it altered the manner of choosing presidential electors.

Clearly, in Wisconsin, for example, the illegal human drop box effort in Madison to try and ballot harvest from students at the University of Wisconsin was subsequently held to be illegal by the Wisconsin Supreme Court, as we had asserted at the time, and the margin in that state was just over 20,000. You add to it then the alteration of the rules for gathering ballots out of nursing homes, which state law made explicitly clear you had to have bipartisan teams go into the nursing homes before anybody could gather ballots in those nursing homes. So these illegalities rendered the election illegal, unconstitutional. And in my view, in my assessment, the advice I eventually gave was to let the legislatures take some time to try and decide what to do about it.

One of the interesting elements in the film I’m just remembering is that Harvard Law Professor Lawrence Lessig focuses in the film on the reasonableness of having two slates of electors actually officially exist when these types of questions have arisen. You know, we go into the nuance of a lot of things that we just don’t really have to consider, but this sort of thing has been litigated before.

It’s not been litigated before, but it has happened before, and that’s important. Congress was deliberately left out of any role in the choosing of the president. The one thing that’s very clear from the closing days and weeks of the federal convention in Philadelphia in 1787 is they determined that it would not be a good idea if Congress had any role in the selection of the president because that would destroy the separation of powers that they had spent the whole summer crafting so carefully. It would turn us into a parliamentary system rather than a separate checks and balances, co-equal branches of government system.

The only role that Congress has is to set the date that the electors shall meet. And then the Constitution says such states shall be the same throughout the United States. So you can’t get early returns in one part of the country and then try to skew the results in another part of the country based on those returns. So the electors have to meet on the same day. And if they don’t, there’s a very serious question on whether electoral votes that were not cast on that day but subsequently determined to be the actual winners could be counted.

And there’s a wonderful historical example of this in 1856 in the new state of Wisconsin, there was a blizzard, and the electors could not get to the designated place to cast their votes on the designated day. They met the next day and cast their votes and sent them to Congress. And then two very important things happened in Congress as a result of that. The acting president of the Senate determined to count the Wisconsin votes. People objected in the joint session of Congress, and he ruled those objections out of order because he had made the determination to count those votes. Very important.

And then the second thing is that the issue was then taken up by both the House and the Senate for three days after that, after the joint session had concluded, and they argued about whether that was proper or not. And both of those debates were tabled, and we never got a resolution on whether those Wisconsin votes were properly counted. So fast forward to 2024.

I can guarantee you if President Trump’s electors in Georgia and Arizona and elsewhere had not met on the designated day and a lawsuit that was pending at the time had ruled that Trump actually won that state, I’ll guarantee you the Democrats would have been arguing that those votes couldn’t have been counted, right, because they didn’t meet on the designated day. So these were alternative or contingent electors that met because there was pending litigation or other challenges to the election that might have altered the certified outcome. And if they hadn’t, there’s a serious question whether they could have been counted.

Basically, the idea was that if there is a question, those electors should meet. and cast their votes, and then the proper slate of electors will be chosen ultimately when the electoral college votes are counted.

Yes, and that’s exactly what happened in Hawaii after the 1960 election. Richard Nixon won the election on election day. His electors were certified as the victors, but there was a legal challenge pending at the time the electors were required to meet. So the Nixon electors met and cast their votes, just like the Biden electors and all the swing states met and cast their votes.

But the Kennedy electors also met just in case the election challenge went their way. They met without any authority. They were not certified. They met on their own, just as the President Trump electors met on their own in these various states. But two weeks after the designated day for the meeting, the election challenge was resolved, and it was determined that Kennedy had actually won the election.

So the newly elected Democrat governor of Hawaii quickly certified the Kennedy electors and sent that slate by plane, arriving in Washington, D.C. on the morning of the joint session of Congress on January 6th, and President Nixon opened all three slates of electors. He opened the one that was initially certified for him. He opened the uncertified slate of votes from the Kennedy electors, and then he opened the subsequently certified slate of electors. And he actually said, I’ve got three slates here; if there’s not any objection, I’m going to count the last one, the Kennedy ones, and nobody objected. There’s a question on whether objections would have been proper or not, but he was determined to count the Kennedy electors.

Tell me a little bit about your background before we continue, because there’s also been debate about that.

I have an undergraduate degree from the University of Dallas in politics and economics, and I earned a PhD in political philosophy from the Claremont Graduate School. I then went to the University of Chicago Law School, clerked for a very prominent Fourth Circuit judge, and then U.S. Supreme Court Justice Clarence Thomas at the Supreme Court. I went to work for a major national international law firm, created my own public interest law firm, and went into teaching, teaching for over 20 years at Chapman University School of Law until I represented President Trump, and that was just too much.

I’ve been involved with my public interest law firm called the Center for Constitutional Jurisprudence, representing 24 different parties and clients before the Supreme Court, arguing cases before the Supreme Court, and then being involved in nearly 200 total cases with amicus curiae clients, raising questions of the basic original understanding of the Constitution.That’s our area of expertise.

What was it that was so contentious in your representation of President Trump?

The Saturday after the election, when many of the major news organizations called the election for Biden, despite the fact that there were still very serious election challenges pending, there was a rush to judgment. What occurred that I’ve never seen before is because the media called the election, everything ought to stop. All the legal challenges ought to stop because it’s already been called. You’re undermining democracy if you don’t stand down in the face of this pronouncement from our betters.

That just didn’t sit well with me because it was so blatantly not true. To this day, for example, in Pennsylvania, there are more than 100,000 more ballots that were cast and counted than people recorded as having cast ballots. It seemed to me that those kinds of things ought to have gotten a hearing. When the courts are refusing to take up these cases, you’ve heard the line, well, 65 courts ruled against Trump. It’s just not true.

They didn’t rule against him on the merits in almost all of the cases. They ruled against him on technicalities: the wrong people brought the case, you brought it too soon, you brought it too late. There was something nefarious going on and a pronouncement, a narrative that the election was clearly won for Biden, and all these other things are just attempts to undermine democracy, to undermine the people’s support for the institutions, rather than the serious challenges to what had occurred that they were.That took on an Orwellian mantra: the government has spoken, and you better dare not challenge it, or we’re going to destroy you. Speaking up then led directly to the lawfare that we’ve seen for the four years since.

So many of these challenges, which you’re telling me are serious, still have not been resolved. Is that right? Is it important at this point to resolve them?

I often get that question, why not just move on? Look forward, let’s not look back. There are two reasons I continue to look back. One, I think the historical record of what occurred is important. When the courts themselves were refusing to look at the merits of the cases, that left a sore spot on the American body politic, a scab, if you will, that remains unhealed. I thought it was important to heal it.

I urged at the time, let’s let these things be aired out. If at the end result of airing them out, Biden is certified anyway, then at least the American people will know that the appearance of illegality and fraud that they saw with their own eyes did not affect the outcome, and they’ll find some solace in that. But if you leave that unaddressed, then that sore festers.

The second reason I continue to insist on shining a light on that is if, in fact, what I believe occurred did occur and the people that did it are not held accountable, they’ll do it again. The ability for us to have consent of the governed—how do we give consent? None of us were around in 1787 when they ratified the Constitution. So how do we give ongoing consent to our system of government? We do it by free and fair elections.

If the elections are not free and fair, and if you’re not allowed to raise questions about it, then we no longer are giving consent to the government. Somebody else is deciding for us the direction that the government ought to be going. It’s both backward-looking because I think it’s important to shine a light on what went on, but it’s very forward-looking as well to make sure that that kind of thing never happens again.

Some people might say, and I guess have said, look, Trump won. So isn’t that proof that we’ve dealt with these issues?

I think it’s proof that the American people were so fed up with the way they had been dealt with. They let that disgust be known by the way they voted in the November 2024 election. He didn’t just win the electoral vote by a landslide, but he won the popular vote, which Republicans in recent years have not been doing. I think that demonstrated a reaction of the American people to what they had been observing, both with the 2020 election and the lawfare that had occurred since, and they want to put a stop to it. But Trump’s election itself is not going to put a stop to it.

As we’ve seen, the prosecutors in counties in Georgia and Wisconsin, the attorneys general in Michigan, Arizona, and Nevada are continuing to prosecute what they call the fake electors in order to get a pound of flesh. That means they didn’t get the message from the American people in November of 2024, and a significant percentage of their supporters continue to think that Trump’s claims about the 2020 election are corrosive to democracy and that he’s an authoritarian, that he’ll bring on the Fourth Reich or whatever, you know, the accusations are just blatant lies. Yet there’s a large portion of the country that continues to believe it. If we don’t talk about these things, then those falsities take root.

You’re telling me there’s numerous active cases going on against this second slate of electors just for the fact that they did it, that they dared to cast the votes as an alternative slate.

I think in each of the swing states, I’m involved in two of them. I didn’t have any involvement during the election in Arizona except to respond to a request from a legislator to speak to the speaker to say, you’ve got authority to convene the body and take a look at this. That was all. For that, I’m indicted in Arizona. In Georgia, I’m indicted along with all the electors.

One of the charges against me there was that when I responded to an invitation to testify before a legislative committee about the constitutional authority of state legislatures, and remember, they asked me to testify, but I was charged with soliciting the legislators to violate their oath of office because I answered their questions during that testimony. That charge was thrown out both by the trial court and the court of appeals. But the district attorney, Fani Willis, has filed an appeal to the Georgia Supreme Court, even though she’s been disqualified and has no lawful authority to continue to prosecute the case.

But she’s still prosecuting the case. In Arizona, the Attorney General was caught with her hand in the cookie jar, essentially. They inadvertently attached to some of the search warrants a memo. from one of these hyper-partisan nonprofit groups called the States United Democracy Center, and they attached it as the proof of probable cause to get a search warrant. And by the way, the search warrant was for my email accounts on Gmail. It included my former secretary’s email account, which I took over when she passed away at her request to deal with family affairs and her estate. It included my wife’s father’s email account that we had taken over when he died, and her brother’s account.

There could not plausibly be any probable cause to have been searching my brother-in-law’s, my father-in-law’s, or my secretary’s email accounts, and yet they were part of this because of the States United Democracy Center. And the States United Democracy Center is the same group that filed a bar complaint against me in California and has been filing bar complaints against others around the country. And what’s been disclosed here recently is that the same group or its affiliate was paying her legal fund $200,000 at the same time that she’s asking them to prepare this prosecution memo.

It’s a conflict of interest at best and an egregious violation of the ethical obligations of the prosecuting attorney general at worst. But that’s still going on in Arizona. The case against electors in Nevada was thrown out because it was brought in the wrong forum, but the attorney general re-brought it. Jim Troupis in Wisconsin is being subjected to bar disciplinary proceedings, but also criminal indictment for his work with the electors to get them to cast their contingent votes. And the same thing’s going on in Michigan.

So these local prosecutors, hyper-partisan prosecutors, are continuing to state during the interviews for my documentary that it’s perfectly appropriate and, in fact, required for these alternate electors to have cast their votes if there was any legitimate concern that the litigation would result in a different outcome. And if they hadn’t done that, as I said before, there’d be a hue and cry if they did late cast their votes that they couldn’t be counted.

The point that we’re trying to look at is, is it reasonable for these electors to do what they did?

Perfectly reasonable. And in each of the swing states, you had election challenges that were still pending. Some of them, as in Arizona, had already been resolved in the state courts. But there was a U.S. Supreme Court petition request to take the case still pending. And if any of those cases had gone the other way and determined that in fact the illegality affected more votes than the margin, then Trump should have been certified. We’ve had this happen a couple of times in our recent history and more times in our full history.

So in the 1990s, there was a state senate election in Pennsylvania, and after the election was certified, after the fellow that declared victor was sworn in. And several months after he’d been in office, it was discovered that he and his campaign people had engaged in a pretty massive voter fraud. And they threw out the election, and they were able to determine without the fraudulent votes, the other guy had won. So they then retroactively certified him as the winner, and he then took the seat in the Senate because they were able to determine based on the best evidence who had actually won.

More recently, in 2018, a congressional race in North Carolina, also an illegal ballot harvesting scheme by one of the candidates threw the election out, but they could not determine who had actually won the election because of the anonymity of ballots and what have you. So they called a new election. So those were the two options depending on what the factual circumstances demonstrated.

But that was all closed off. We’re not allowed to talk about it. The press and the government have told us there’s nothing to see here. It’s like that old movie with everything blowing up in the background and saying nothing to see here, or more modernly, just mostly peaceful protests, right? With cars burning over the shoulder of the news anchor making that ridiculous claim.

The role of the media in these scenarios, right? In these, you know, lawfare, arguably lawfare scenarios, it seems to me a critical, the media plays a critical part in this. And can you give me a picture of that?

Yes, so one of the reasons why we continue to have such consternation over this is because of narratives that are just demonstrably false, and those narratives would not have nearly the traction that they have if it weren’t for the media echoing them and not only echoing the false narrative but demonizing and trying to discredit anybody that stands up with the counter with the evidence that shows the narrative is false. You see this happen in the business records trial against President Trump, the felony charges for what was largely a bookkeeping error by somebody on his staff if the allegations are true, and I don’t think they were true at all, but they rushed to judgment. They put this before a Manhattan jury, which is 90% anti-Trump, and then he gets convicted with egregious due process errors in the whole conduct of the trial, undoubtedly going to get overturned on appeal eventually.

But then when he gets elected in November, the judge rushes forward to get a sentencing date three or four days before he’s inaugurated, and when the judge would no longer have jurisdiction over the sitting president. And the sentence was no time served, no fine, so that he has no basis to appeal the sentence. And what was the purpose of that? It was simply to bolster a narrative. And you see it in every major news story about anything that Trump does that the left doesn’t like.

There’s the line in every one of those stories, this president, the convicted felon. And because of the conviction, you can’t say a convicted felon just by the jury verdict. You’ve got to wait for the sentencing for that to be a formal thing. And so they rushed this through to bolster a narrative that they think will further their agenda against President Trump.

Same thing with me. Every time I, you know, I’m a very strong advocate of the president’s executive order on birthright citizenship. I’m, you know, one of the leading scholars on that subject. And my briefs in the case, you know, when a news media outlet covers my brief, it now includes Eastman, who’s, you know, been disbarred in California, which is not true, only recommended so far, or indicted. And it always includes those to undermine my credibility, to discredit me, and therefore to discredit the arguments without ever having to confront the arguments.

I’m thinking about the so-called Trump hush money case, right? Which, you know, Alan Dershowitz calls the worst case he’s seen in 60 years of jurisprudence. I mean, because they invented, you know, I guess the crime in itself in his view. There’s this element of a lot of reporting that’s done, right? I think they want a Pulitzer for it. And then there’s an investigation that is triggered somehow basically, but validated by the fact that there’s all this reporting. So it’s almost like the two go hand in hand.

I think Nancy Pelosi at one point called it a wraparound smear. Some elected official makes a smear. The press picks it up, supposedly does an independent investigation that confirms the smear. And then that goes back to the elected official and say, see, the New York Times has confirmed what I said, even though their story is based on what I said. And therefore, what I said must be true, even though it’s blatantly false. The wraparound smear.

And you see it with the hush money case. By the way, you don’t see it in the real hush money case. So the other Pulitzer Prize the New York Times won was for the Russiagate scandal. And let’s just unpack the allegations against President Trump that they falsely reported on his business records that a payment to Stormy Daniels to keep her quiet in order to prevent that story from coming out that might have harmed his election chances in 2016. This is the basis of it, even though the false reporting didn’t occur until after the election.

But that’s the kind of narrative. And it was designed to help his reelection campaign and therefore should have been treated as a campaign expenditure using campaign funds and reported on the campaign reports. This is the basis of it. One of the things the judge refused to allow was testimony from the former chairman of the Federal Election Commission that that’s not a federal election violation. It was a personal expenditure. In fact, if he had used campaign funds to do that payment, it would have been illegal, a personal benefit with campaign funds, right? And the whole case, as Alan Dershowitz pointed out, is just crazy.

But now compare that to what happened in 2016 on the other side of the political aisle. Hillary Clinton’s campaign sent millions of dollars to its law firm, Perkins Coie. Perkins Coie used that money to hire a foreign intelligence agent, creating a false narrative about Russia involvement with Trump. The FBI was fully aware that all of this was phony. They did not report that this expenditure was for opposition research. Their campaign finance report said it was for legal compliance.

That’s a false entry to the Federal Election Commission on something that hides a pretty significant issue in the campaign and tries to keep it from the American public to influence the outcome of the election, right? That’s where actual crimes were committed, and yet nobody has said anything about that. There was a fine imposed on the Hillary Clinton campaign for this falsity, but it was a fine; there were no criminal charges, so the disparate treatment demonstrates that what went on against President Trump was manufactured to affect the outcome of the election. And of course, the media playing into that story and keeping it alive and pushing this false narrative had a dramatic impact on how that was viewed, and that was part of their goal. It was an agenda-driven rather than a truth-seeking driven media operation.

What is the status of your license to practice law?

In March of 2024, the California Bar Court trial judge issued an opinion recommending that I be disbarred. Now the California Bar Court judges don’t have any authority to actually impose such a sanction, whether disbarment or suspension; only the California Supreme Court can do that. So it’s only a recommendation at this point. But what accompanied the recommendation is a statutory automatic rendering of my license inactive pending the appeal. And they’ve been able to kick the can down the road for nearly a year before we even got our appeal argument.

The next step would be for the California Supreme Court to decide what to do; accepting whatever recommendation comes to them, just rubber-stamping it, taking it up and reviewing it anew, or what have you. And very significantly, the egregious violations of my First Amendment rights, my free speech rights, and my right to petition the government for redress of grievances that the trial judge just gave the back of the hand to by applying wrong standards of First Amendment law. Those are federal constitutional issues. That means that the U.S. Supreme Court would have jurisdiction to take the case up from the California Supreme Court if it rules against me. And so we have that in place as well.

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