November 30, 2021


Beyond law

The legal minds who tried to overturn the election for Trump are welcomed back into polite society.

Though it hasn’t received the attention it deserves, courage from Republican election officials and leaders helped save this country from a total election meltdown in 2020 based on lies about voter fraud from the incumbent president, Donald Trump. Georgia Secretary of State Brad Raffensperger refused to “find” more than 11,000 presidential votes in Georgia, as Trump personally requested, declining to give Georgia’s legislature an excuse to falsely declare Trump won the state. Former acting Attorney General Jeffrey Rosen rejected entreaties to have the Department of Justice claim fraud in states Biden won. He did so despite pressure from Trump and Jeffrey Clark, a DOJ official who vied for Rosen’s job and was ready to do Trump’s bidding, potentially in violation of federal law. And Federalist Society judges such as Stephanos Bibas excoriated bogus Trump attempts to overturn the election in court without evidence or solid legal theories.

But memories fade fast. On the right, within the Federalist Society, and even among others who apparently value civility over preserving democracy, some are quietly welcoming back into the fold those who would have stolen the election for Trump or who fomented the violent Jan. 6 insurrection. Most appear to be doing so not because they supported the insurrection or Trump’s ridiculous claims, but out of willful ignorance of the facts, or in the name of civility or free speech. It’s a mistake, and it’s taking us down a dangerous path.

Almost a month ago, Slate’s Mark Joseph Stern wrote about how Jeffrey Clark had landed a cushy job as chief of litigation and director of strategy at the New Civil Liberties Alliance, a conservative-libertarian law firm that battles “the administrative state.” Among those on the Board of Advisers of the NCLA are former D.C. Circuit Judge Janice Rogers Brown and noted libertarian law professors Randy Barnett and Eugene Volokh. Despite entreaties, nobody involved in the organization has spoken out about Clark’s appointment.

Or consider the Federalist Society and its relationship with John Eastman, a former Chapman University law school professor who “retired” under pressure after representing Trump in bogus election lawsuits and after giving an incendiary speech just before insurrectionists stormed the Capitol on Jan. 6. As law professor Jim Oleske explained in a post on a listserv for constitutional law professors, Eastman was using his weight as an academic to rile up the crowd with lies: “Eastman purported to be able to speak with authority, at length, and definitively that ‘we know there was fraud, traditional fraud’ because ‘they put those ballots in a secret folder in the machines … they were unloading the ballots from that secret folder … and voila! We have enough folks to barely get over the finish line. We saw it happened in real time last night [during the Georgia Senate runoff], and it happened on November 3rd as well.’ ” The claims were bogus and have been repeatedly debunked. Eastman, meanwhile, has remarkably since claimed that the insurrection was caused by “antifa.”

Before Jan. 6, Eastman served as the chair of FedSoc’s Federalism & Separation of Powers Practice Group. After Jan. 6, amid calls for the Federalist Society to distance itself from Eastman, the Federalist Society said nothing. But the group did change his bio on its website to scrub out the reference to the chair job, and the site no longer lists the chairs of their practice groups. But Eastman remains a contributor and has spoken at least once since Jan. 6 at a FedSoc event.

Then, over the weekend, Eastman was allowed to join that private listserv of constitutional law professors. The list’s moderator, professor Mark Scarberry, is a conservative Trump opponent who made a good-faith decision to allow Eastman to join so that he could defend himself. While listserv posts are not public unless the writer of the post gives permission to quote (all the posts quoted here are done with permission), it was clear that Eastman did not do well defending himself on the merits when he was confronted with his bogus fraud claims.

Eastman showed no contrition for his remarks or for his role in helping to foment violence at the Capitol. As professor Steve Vladeck admonished Eastman regarding the effort to rehabilitate himself before these elite professors:

Perhaps you might also consider the rather different audience to which you are continuing to push a thoroughly debunked and flatly unconvincing narrative about the “theft” of a legitimate election, a narrative that helped to precipitate the most violent attack on the U.S. Capitol since the British burned it in 1814 in an attempt to prevent the peaceful and lawful transition of power, and a narrative in which you were far more than just an outside observer—and for which, in my view, you have a lot to answer for.

Especially given the lack of contrition—and the ongoing efforts by Trump and his cronies to undermine the last election and lay the groundwork for the next attack on democracy—letting John Eastman back into the scrum of law professors or as a speaker at Federalist Society events, or giving Jeffrey Clark the safe landing at a conservative legal organization, sends exactly the wrong signal.

Everyone has a line that cannot be crossed and the question is where that line is. Imagine how we would react if evidence showed that Eastman or Clark were child abusers or Nazis. Surely they would not get hired for a fancy new gig, remain featured on the Federalist Society website or invited to speak regularly at the society’s events, or continue to participate in listserv discussions among esteemed scholars. We need to treat those who participated in attempts to try to steal the election the same way, not just wait a respectable few months before forgetting the insurrection happened. United States democracy is under the greatest threat of attack since the Civil War, and the threat to free and fair elections is only increasing in this country because of people like Eastman and Clark.

As my election law colleague and professor Franita Tolson wrote to that listerv:

Stop acting like allowing Eastman in this space is free of any judgments on the merits. Just like when one gives space to hate speech, sexist speech and racist speech … speech seeking to undermine a free and fair election has real world consequences when it finds a forum. This listserv may be okay with that … but own it.

Some courts have begun sanctioning lawyers for lying to the courts about evidence of fraud in support of overturning the 2020 election in favor of Trump. As district court Judge Linda Parker wrote in imposing sanctions against Sidney Powell, Lin Wood, and other lawyers filing bogus suits, “This case was never about fraud—it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.”

Those on the right—and left—need to follow the courts’ lead. This is not about politically correct “cancel culture.” No one is saying Eastman or Clark can’t speak. But there should be consequences for an attempt to destroy an American election and send American democracy down the road of authoritarianism. They certainly don’t deserve rewards in the name of civility and free speech.

We need more of the courage that we saw in the aftermath of the 2020 elections, not more silence and acquiescence.

Update, Sept. 1, 2021, at 12:15 p.m.: After this article was posted, Fix the Court called attention to a Claremont Institute event that not only features John Eastman; it also has an entire panel on “Election Integrity and the Future of American Republican Government.” It perhaps is not surprising that torture-memo professor John Yoo is speaking on this panel. But it is profoundly disturbing that the senior judge for the 9th Circuit, Carlos Bea, is agreeing to be an honoree at this event. He deserves round condemnation for lending his name and credibility to Eastman’s attempt to promote the Big Lie and rehabilitate his reputation.