Former Trump lawyer faces disbarment in California over attempt to overturn election

The state Bar of California announced Thursday it has filed a disciplinary complaint against former Chapman University law school dean John Eastman, accusing him of pushing bogus claims of fraud in the 2020 presidential election.

The complaint alleges Eastman promoted false and misleading claims of election fraud, including at his appearance before a crowd that included many protesters who stormed the Capitol on Jan. 6, 2021. The complaint seeks to disbar Eastman.

“There is nothing more sacrosanct to our American democracy than free and fair elections and the peaceful transfer of power,” said George Cardona, the bar’s chief trial counsel. “For California attorneys, adherence to the U.S. and California Constitutions is their highest legal duty. The Notice of Disciplinary Charges alleges that Mr. Eastman violated this duty in furtherance of an attempt to usurp the will of the American people and overturn election results for the highest office in the land -- an egregious and unprecedented attack on our democracy -- for which he must be held accountable.”

Eastman, who planned to hold a virtual news conference Friday morning with former U.S. Attorney Edwin Meese and other judges and attorneys, issued a statement with his attorney, Randall A. Miller, saying Eastman “disputes every aspect” of the complaint.

Eastman, while working as an attorney for former President Donald Trump, authored two legal memos purporting to validate a plan to block or postpone the certification of President Joe Biden’s election. Eastman argued that Vice President Mike Pence could at least postpone a certification of the votes while Trump supporters worked to replace Biden electors.

The complaint points out that multiple officials, including Trump’s U.S. Attorney William Barr, said publicly that there was no evidence of the widespread election fraud touted by Trump’s supporters. The complaint also notes how many of the lawsuits seeking to overturn the election results were all dumped for lack of any evidence and characterized as speculative.

The complaint also accused Eastman of helping to provoke the crowd gathering before Congress certified the vote Jan. 6.

Eastman’s statement said

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he “determined that, in light of the acknowledged illegality and serious allegations of fraud, one possible option was for the vice president to accede to requests from numerous state legislators to postpone certification for a brief period of time to allow the claims of fraud and illegality to be assessed by the state legislatures. Dr. Eastman’s assessments were the product of comprehensive research of the law and historical records -- including the 12th Amendment and Electoral Count Act, supported by reasonable interpretation of legal and historical precedent, scholarly analysis and legislative history.”

Miller said, “Any lawyer engaged to provide his or her legal assessment in a dynamic, consequential, and often emotional arena should be deeply troubled by the notion that a licensing authority (bar) can take their license if they do not like the lawyer’s advice, or find the advocacy distasteful.”

Miller said Eastman acted ethically in his representation of Trump.

“Dr. Eastman was one of dozens of advisers to the president. He was a lawyer, not Rasputin,” Miller said.

Eastman was a central figure in the congressional committee investigating the Jan. 6 violence. He sued to stop the select committee from gaining access to thousands of his Chapman University emails.

Eastman was successful in shielding some emails from the investigators, but U.S. District Judge David O. Carter ruled that Eastman should turn over hundreds of emails due to Carter’s finding that Eastman and Trump likely committed criminal fraud in attempting to block certification of the election.

According to the bar’s complaint, Eastman’s “legal theory to support his proposed courses of action was based on misinterpreted historical sources, misinterpreted law review articles, and law review articles which he knew, or was grossly negligent in not knowing, were themselves fundamentally flawed, such that no reasonable attorney with expertise in constitutional or election law would conclude that Pence was legally authorized to take the actions (Eastman) proposed.”

The complaint adds that in an “email exchange with another individual in early October 2020, (Eastman) himself had recognized that these courses of action were improper.”

When Eastman could not convince Pence and his advisers to block the electors, he switched to delaying the certification, according to the bar. Eastman “conceded that the positions he was urging Pence to take were contrary to historical practice, violated several provisions of statutory law, and would likely be unanimously rejected by the Supreme Court,” according to the bar.

In Eastman’s address to the crowd before the insurrection, he said, “We know there was fraud, traditional fraud that occurred. We know that dead people voted.”

The bar complaint alleges that Eastman “knew, or was grossly negligent in not knowing, that, as an attempt to cast doubt on the results of the election, this statement was false and misleading, in that, as (Eastman) knew at the time, there was no evidence upon which a reasonable attorney would rely of fraud in any state election, involving deceased voters or otherwise, which could have affected the outcome of the election.”

The bar noted that though Trump claimed 5,000 ballots in Georgia were cast by dead voters, the Georgia State Election Board “found just four such votes, all of which had been returned by relatives.”

The bar also faulted Eastman for claiming Dominion electronic voting machines were manipulated.

“In fact, (Eastman) knew that on or about Nov. 12, 2020, the Elections Infrastructure Government Coordinating Council and the Election Infrastructure Sector Coordinating Executive Committees issued a joint statement which stated that the `2020 presidential election was the most secure in American history’ and `there was no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised,”’ according to the complaint.

After the mob stormed the Capitol, Eastman continued to push for Pence to delay the certification for 10 days “to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here,” according to the complaint. Pence, however, announced at 3:42 a.m. that the Electoral College votes were counted and certified, electing Biden.

Anumber of tests used by patients to make major health care decisions have once again escaped regulation by the Food and Drug Administration, following intensive lobbying on behalf of testmakers, professional associations and academic medical centers.

For years, experts have warned about the dangers of so-called laboratorydeveloped tests — including certain cancer screenings and diagnostic tests for everything from Lyme disease to autism — reaching patients without FDA oversight.

ProPublica recently published an investigation about popular prenatal screenings that fall into this category, which one expert described as an unregulated “Wild West.” Upwards of half of all pregnant people now receive one of these prenatal screenings. (We also have put together a guide for expecting parents.)

Congress was on the cusp of finally creating a pathway for the FDA to scrutinize these tests, as it does for many other common commercial tests. For much of 2022, the VALID Act seemed on track for passage — and then, in the final weeks of the year, legislators backed away.

The VALID Act, which had bipartisan support, had been developed after nearly a decade of debate among stakeholders about ways to close a regulatory loophole and clarify the FDA’s role in overseeing the testing industry. The legislation had momentum thanks, in part, to Theranos’ fraudulent blood-testing scandal and the coronavirus pandemic, both of which revealed the possible consequences of unchecked tests reaching patients.

But lawmakers left VALID out of a must-pass end-ofyear bill that dealt with a range of spending priorities.

Opponents argued that VALID would have created burdensome regulations for lab-developed tests, or LDTs, stunting essential innovation and flexibility while limiting patient access to health care.

The current approach to lab-developed tests goes back to 1976, when Congress revamped the regulation of medical devices. At the time, the tests were considered low-risk and were not in wide use. Since then, the FDA has effectively exempted this type of lab test from its requirements.

Today, the number and complexity of lab-developed tests has grown. A study by the Pew Charitable Trust said there’s no way of knowing how many are used on patients each year because there are no tracking measures. But Pew estimated that 12,000 labs are likely to use LDTs, many of which process thousands of patient samples each day.

“The needs were getting bigger and bigger, and also the potential risks get bigger and bigger, too,” said Mark McClellan, who served as the head of both the FDA and the Centers for Medicare and Medicaid Services during President George W. Bush’s administration. He had urged Congress to pass the bill.

Several people involved in bill negotiations told ProPublica that concern over how it would affect academic labs is what killed it.

“University laboratories and their representatives in Washington put on a fullcourt press against this,” said Rep. Larry Bucshon, a Repub-

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lican from Indiana. A former cardiothoracic surgeon, Bucshon co-sponsored VALID in the House, along with Rep. Diana DeGette, Democrat of Colorado.

Bucshon pointed to the Association of American Medical Colleges and the Association for Molecular Pathology as particularly influential forces that persuaded his colleagues to leave VALID out of the end-of-year bill. According to disclosure forms, AAMC spent at least $300,000 on lobbying activities that included the VALID Act in 2022, while AMP spent at least $189,000. Since 2018, AMP spent at least $957,000 on lobbying activities that included VALID.

AMP had also urged academic lab leaders to reach out to elected officials about this issue. It shared sample letters for them to sign and send, and it organized a “Virtual Advocacy Day,” where AMP scheduled meetings between members and their representatives in Washington, providing them with talking points, background information and best practices.

“Here’s the thing,” Bucshon said. “The academic medical centers, and big medical centers, are in every state.” They employ a lot of people and have significant economic impact in every lawmaker’s turf, he said, “and so that gives them a pretty big voice.”

Heather Pierce, AAMC’s senior director for science policy and regulatory counsel, said that many academic medical centers make and use a number of lab-developed tests, and they typically don’t have the infrastructure or staff to handle the type of FDA oversight set out by VALID. FDA review, she said, would also add time to the process of developing tests for patients with urgent needs.

The makers of prenatal screening tests weighed in on the bill, too. Illumina, for example, spent more than $3 million over two quarters of 2022 on lobbying activities that included provisions of the VALID Act. And since 2019, Invitae paid at least $950,500 on lobbying activities that included VALID.

“While we support efforts to make sure that lab-developed testing is high quality, Invitae believes that the VALID Act would increase the cost of testing, slow innovation, and force consolidation in the industry while imposing many requirements that do little to improve patient care,” said a spokesperson in an email.

While some proponents of the bill still hold out hope for the VALID Act, others said it’s unlikely to get traction again anytime soon. Several of those involved said they anticipate the FDA, which has long claimed jurisdiction over the tests, will try to use its current powers to take direct action, though that will likely take more time and could face litigation from opponents.

“While we stand ready to work with Congress, we are considering all options,” an FDA press officer said in a statement. “One of those options is administrative action, which could include rulemaking.”

Speaking at a trade conference in October, FDA Commissioner Robert Califf said that going it alone is “not something we want to do, because having a clear law passed leads to the best situation.” But, he said, if nothing passes, “we also can’t stand by.”

Current and former FDA officials have expressed befuddlement at how difficult it has been to regulate these tests. “There’s almost a point of, what do I need to do?” Jeff Shuren, director of the FDA’s

Center for Devices and Radiological Health, said to a trade journal in October. “Do I need a pile of dead bodies before somebody says enough is enough?”

Some opponents of VALID acknowledge that lab testing reform is needed. But they said it should be done without involving the FDA. AMP’s proposed policy, for example, would update the existing oversight system under the Centers for Medicaid and Medicare, which reviews lab operations.

Sen. Rand Paul, a Republican from Kentucky and a former physician, introduced an alternative bill that would do just this, dubbed the VITAL Act. An aide to Paul said the issue came to his attention after AMP approached him about it several years ago. Paul is expected to re-introduce the VITAL Act this year.

While the Centers for Medicaid and Medicare monitor the quality standards in labs, no federal agency checks to make sure lab-developed tests work the way they claim to before they reach patients; similarly, no agency vets the marketing before the tests are sold. Companies aren’t required to publicly report so-called adverse events — incidents that happen when the tests get it wrong. And no federal agency has recall authority.

The VALID Act would have phased in the FDA review process over time, with the agency evaluating only high-risk tests — ones where an inaccurate result could lead to serious harm.

Momentum for VALID began to stall in the summer, with a push for an amendment that would exempt academic medical centers.

“I do think that the fact that we couldn’t get it done in July and August really created this opportunity for people to poke holes in the boat, as it were,” said Cara Tenenbaum, a former FDA policy adviser. “This protracted process allowed people who maybe were not otherwise engaged, or fully engaged, to have an outsized effect that I don’t think was in the interest of patients.”

Pew declined to comment on the proceedings. Tenenbaum lobbied in support of VALID on behalf of Pew.

Bucshon said he understands the concerns of regulatory skeptics. “Include me in that category, if it’s unnecessary and inappropriate regulation that stymies innovation and technology advancements,” Bucshon said. “This isn’t one of those situations, in my opinion.”