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July 9, 2025 - Epoch Times
23:35
Former Trump Lawyer John Eastman: My Fight Against Lawfare and Political Persecution
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Time Text
One of my colleagues said it's called Trump law.
If it involves Trump, there ain't no law.
John Eastman is the founding director of the Claremont Institute Center for Constitutional Jurisprudence.
He is also a former law professor and served as a law clerk for Supreme Court Justice Clarence Thomas.
His life took a sharp turn when he helped President Trump challenge the integrity of the 2020 election results.
His memos have been likened to a roadmap for a coup.
John Eastman was booked and released from the Fulton County Jail in Georgia.
CNN has identified Eastman as one of six unnamed co-conspirators.
And he's on the path to disbarment.
If in fact what I believe occurred did occur and people that did it are not held accountable, they'll do it again.
You think about the last line in our national anthem.
The question is not so much whether the flag still waves or flies.
The question is, is it still the land of the free and the home of the brave?
Or is it the land of the coward and the home of the slave?
This is American Thought Leaders, and I'm Yanye Kellek.
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.
Well, let's talk about what's called the Eastman Dilemma.
Of course, the name of a film, which you're a central character of.
But what is the status of the realities around the Eastman Dilemma right now?
Well, I want to first point out that 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 and 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 is, as a lawyer, when faced with the reality of lawfare that might happen to you, right?
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 is for my colleagues in the profession.
What do they do?
And it's very clear that the groups that are bringing the bar challenges, that are urging the criminal prosecution of Trump's lawyers for challenging illegality in the 2020 election, they're very clear that they want to not only get disbarred all these lawyers, to send such a message to other lawyers that nobody will ever take on these kind of cases again.
And so the real dilemma is going to be, are you willing to stand up for truth, for doing...
He was roundly attacked for that, but he stood for the principle that everybody is entitled to a 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.
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 left with may not be the truth.
In fact, it's very likely not going to be the truth.
So let's go back to the 2020 election.
Let's dare to a little bit.
And let's just talk about what right now, you know, looking back, where were the things that needed to be assessed?
Article 2 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.
And 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 state court, 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 meant it illegal.
And 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 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.
Yeah, in certain states, and they were all the swing states, unsurprisingly.
Pennsylvania, Michigan, Wisconsin, Georgia, Arizona to an extent, 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.
And clearly in Wisconsin, for example, the illegal human dropbox effort in Madison to try and ballot harvests from students at the University of Wisconsin.
That 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, and the advice I eventually gave was to let the legislatures take some time to try and decide what to do about it.
So one of the interesting elements in the film I'm just remembering is that Harvard law professor, Lawrence Lessig.
He focuses in the film talking about 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 the important.
So 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, 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 separation of powers that they'd 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 and 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 Wisconsin, New Lee State in 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 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 met, there's a serious question whether they could have been counted.
So 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 of the swing stats 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 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 a plane, arrived 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 says, 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.
And there's a question on whether objections would have been proper or not.
But he determined to count the Kennedy electors.
John, one quick sec.
We're going to take a break.
And folks, we're going to be right back.
And we're back with Professor John Eastman, Senior Fellow at the Claremont Institute.
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?
So I often get that question.
You know, why not just move on?
Look forward.
Let's not look back.
And there are two reasons I continue to look back.
One, I think the historical record of what occurred is important.
And 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.
And I thought it was important to heal it.
You know, and I urged at the time, I said, let's let these things be aired out.
And if at the end result of airing them out, Biden is end-up 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'd leave that unaddressed, then that sore festers.
And then the second reason I continue to insist on shining a light on that is if in fact what I believe occurred did occur and people that did it are not held accountable, they'll do it again.
So 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.
I guess 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 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, you know, 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 that 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 lawfair, arguably lawfare scenarios, seems to me a critical, the media play a critical part in this.
You can give me a picture of that.
Yeah, so one of the reasons why we continue to have such consternation over this is because of narratives that are put out 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 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 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 rush 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 one of the leading scholars on that subject.
And my briefs in the case, when a news media outlet covers my brief, it now includes Eastman, who's 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.
You know, many cases, I mean, you're involved in a number of criminal cases right now, right?
And typically, as I understand it, people who are involved in such cases are advised to not talk to people like me.
Why is it that you're so outspoken?
You mean there's a whole film out and of course you're talking about all sorts of things like birthright citizenship and the riots in LA, which we'll talk about still.
But why are you speaking with me about all these things?
So I quickly came to the resolution or the realization, excuse me, the realization that the law didn't matter here.
One of my colleagues said it's called Trump law.
If it involves Trump, there ain't no law.
That these were not normal legal skirmishes where the normal rules, most clients would be advised by their lawyer.
If you're charged with a criminal matter, be quiet.
Don't give them any fodder that they can turn against you.
But because this was much more political and whether these prosecutions were going to go forward or not or would get traction in the local jury pools was very political.
And if I was staying silent and letting the other side define the narrative, the narrative that Eastman got fake electors to cast votes to undermine democracy and instill President Trump into office or keep him in office, even though he knew he lost the election, that was the narrative.
And if I allow that narrative to be told over and over and over again without being challenged, then it becomes as if it's true, and it has an impact on the jury pool in those criminal matters.
And they will come to that jury deliberation believing that narrative and then trying to figure out: should Eastman be sent away for the rest of his life because he engaged in that?
And you can't let that stand.
You can't let those false narratives take root, it seems to me.
And so that's why we spent a lot of time with my legal teams addressing just this very issue.
And they finally came around to my view on this, that I think we need to be speaking out publicly to challenge the narrative, because there's nothing that we did was wrong.
And yet the narrative is out there that we were trying to destroy our elections, our democracy.
I mean, it's just blatantly false.
But if you let those false things go unanswered, then people start to believe them.
It's Goebbels, you know, the big lie.
They say that Trump was engaged in the big lie, but the real big lie was that Trump was engaged in a big lie.
It's Goebbels.
If you repeat the lie big enough and often enough, people will come to believe it.
And that's why I determined you got to speak up against it.
Well, John, this has been an absolutely fascinating conversation.
Final thought as we finish?
People often ask me why I persist in fighting against the lawfare against me.
Why not just throw in the towel and cut deals and be done?
And my answer to them has been, I think our country was on the precipice and may still be on the precipice of losing freedoms that we inherited, that our grandfathers and even further back, our founders, pledged their lives and their fortunes and their sacred honor to achieve.
And I'm not willing to let those things be lost for my kids and grandkids without putting up a fight.
When the Georgia indictment was handed down against me, I was teaching a seminar of young recent law school grads called the John Marshall Fellowship that we run at the Claremont Institute.
And everybody's phone starts buzzing.
And I look down at my phone.
I'm teaching a seminar on the religion clauses.
And I look down at my phone and I pull it out and it says, you've just been indicted in Georgia.
And I put it aside.
But everybody else's phones are buzzing as well.
So I know everybody in the room knows it.
But I continue to teach about the religion clauses.
And at the end of the week, we have a nice fancy dinner and some good wine and they roast each other and they'll occasionally toast the professors and thank us.
But this was such a monumentally significant thing that happened in the middle of the week.
They decide to roast me.
And one of the participants gets up and says, he was teaching us the religion clauses.
All of a sudden, a bunch of jack-booted thugs start rappelling down from the rooftop and barge in and come arrest him and carrying him off sideways in leg shackles.
Now, that didn't happen, of course, but it was funny and drew the laugh.
And then he turned very seriously and he said, what we witnessed there with his commitment to continue to teach what was the subject matter that we were there for demonstrated to us a level of courage that was contagious.
And then he closed with this.
He said, if you think about the last line in our national anthem, the question is not so much whether the flag still waves or flies.
The question is what kind of land it flies over.
Is it still the land of the free and the home of the brave?
Or is it the land of the coward and the home of the slave?
And that was just profound.
And I'm not willing to hand off a land of the coward and the home of the slave to my kids and now increasingly my grandkids.
So we fight for something that I think is the fight for our time.
And that is for freedom and liberty, whether pursuing economic interests or noble aspirations of how you conduct your lives in political community.
But it's a fight worth fighting for.
It may be the most important fight worth fighting for.
And so that's why I do it.
Well, John Eastman, it's such a pleasure to have had you on.
Thank you, Jan.
It's a real pleasure to have this conversation with you.
Thank you all for joining John Eastman and me on this episode of American Thought Leaders.
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