Friday, January 15, 2021

Brian S. Brown Making Excuses for John Eastman

John Eastman
via Associated Press, 2017
“Brown can claim that Eastman is the greatest legal scholar since Louis Brandeis. It is entirely irrelevant. Mr. Eastman's conduct obscures any relevant legal wisdom.”
The latest missive, on behalf of National Organization, from Brian S. Brown is titled: In support of John Eastman: Therein Brown attempts to defend Mr. Eastman who is NOM's chairman:
John Eastman is one of America’s foremost constitutional scholars, appellate advocates and conservative voices. Professor Eastman served in the Reagan Administration, and clerked for some of the top conservative justices in the country, including federal Appeals Court Judge Michael Luttig and Supreme Court Justice Clarence Thomas. The National Organization for Marriage (NOM) was honored to have him serve with distinction as our Chairman for several years and he has represented NOM in numerous issues before the courts.
The reason that Brown is defending Eastman is that, in light of Eastman's actions in support of Donald Trump, Chapman University demanded Eastman's resignation.

I haved three issues with Eastman:
  1. Anti-LGBTQ advocacy.
  2. Professional ethics.
  3. Support of Trump and Trump's baseless conspiracy theories.
NOM is clearly an anti-LGBTQ organization. As chairman, Eastman bears some responsibility for an agenda that fought tooth and nail — as a proxy for the Catholic Church — against marriage equality. NOM's toxic agenda was pursued dishonestly. NOM's leaders insisted that marriage equality was going to destroy so-called “traditional” marriage.

NOM also advanced the argument that same-sex marriage would be terrible for children because gay couples are not suitable parents. That is offensive. It is also untrue if we are to believe the overwhelming consensus of science. Moreover, NOM's argument discounted the benefits gained by children already being raised by gay couples

More recently (although NOM is still trying to overturn Obergefell), NOM has expressed considerable bigotry regarding transgender people. NOM has promoted the idea that gender incongruent children are just confused and should be prevented from transitioning.

None of this is based on medical science but a desire to defend scripture. In other words — just as they did with marriage — the objection pre-dated the reasoning. Then they searched for arguments to support the pre-ordained conclusion.

Brown is correct when he says that Eastman has represented NOM in court many times. While Eastman (to the best of my knowledge) never prevailed, his objective was to obstruct LGBTQ rights.

Lawyers work for unpopular people and causes. Doing so is essential to our maintaining a fair society. In these cases, however, Eastman was working as a principal because he was lawyering for NOM while he was board chairman of the organization.

That brings me to professional concerns

I have served on corporate boards at the same time that I was providing the company with consulting services. I was excruciatingly careful to avoid any possible conflict of interest. In one instance the company's revenues were impacted by a delay in government funding. I made sure that my invoices were at the very bottom of the pile.

John Eastman was less prudent. In NOM's case against the Internal Revenue Service (which, through a clerical error disclosed some NOM donors several years prior), Eastman was extremely hyperbolic. Eastman overstated the damage caused by the disclosure.

I cannot know for sure but the appearance is that he (with influence as board chairman) Eastman overstated to Brian Brown not only the damage but the potential rewards of litigating the matter. Then as NOM's lawyer he allowed NOM to run up what he later claimed amounted to nearly $700,000 in legal fees.

Some of those fees were entirely unnecessary. For example, Eastman personally subpoenaed Fred Karger when there was absolutely no connection between Karger and the IRS matter. I am certain that Eastman billed NOM for several hours of his time. Eastman was irresponsible with NOM's money.

In a sense Eastman did us a favor. Money went to Eastman to accomplish nothing. Otherwise those same funds could have been used to marginalize LGBTQ people.

The IRS settled the matter for $50,000 for what the judge concluded was an inadvertent clerical error. In spite of the settlement, the judge determined that the IRS had prevailed which meant that NOM would not receive compensation for its legal fees. NOM took a $650,000 bath unless Eastman later forgave some of the debt.

For what it is worth I tried to reconcile the legal fees with the tax returns. Nothing added up. It appears that Eastman might have overstated his fees for the Court.

That brings me to Donald Trump.

In August, 2020 Eastman published an article to Newsweek asserting that Kamala Harris was ineligible to serve as vice president because, at the time of her birth, her parents were not (yet) U.S. citizens. Most scholars, regardless of political bent, agree that an individual born in this country has “birthright” citizenship.

Aside from the nouveau Birtherism, Eastman was hypocritical because Eastman previously claimed that Ted Cruz, who was born in Canada, was eligible to become president.

Newsweek has allowed the article to remain but has included three introductory editorial paragraphs. Newsweek has characterized Eastman's piece — what I think was a racist attempt to benefit Trump — as some sort of esoteric academic exercise.

The very next day, UCLA Professor Eugene Volokh posted a piece to Newsweek rebutting Eastman's arguments. In their essays, both men, Eastman and Volokh, claim to be mutual friends. Eugene Volokh, by the way, is a friend to the LGBTQ community having submitted pro-LGBTQ amicus briefs in some important cases along with Professor Dale Carpenter (SMU).

More recently, Eastman represented Trump in his effort to intervene in the Texas election case; Texas v. Pennsylvania et al. I have no problem with that. Eastman was doing what lawyers do. (A number of Eastman's colleagues at Chapman were not similarly disposed.)

This month Eastman advised Mike Pence that Pence had the authority to reject slates of electors (I am over-simplifying the matter). J. Michael Luttig, a former appeals court judge (Fourth Circuit) along with other scholars convinced Pence that he was obliged to follow the law and limit his role to one that is ministerial.

Eastman continues to maintain that he was correct. To do so he makes the presumption that baseless allegation of widespread voter fraud were credible.

January 6, “a date which will live in infamy.” Eastman, along with Rudy Giuliani, claimed that the Dominion voting machines that contained “secret folders” to manipulate the results. Eastman also made false claims about what has been called a “forensic audit” of voting machines in Antrim County, Michigan.
It is also a fact that a forensic analysis of the one voting machine courts have permitted to be inspected demonstrated not only that the machines are capable of switching votes, but they actually did switch votes in Antrim County, Michigan.

In other words, it is patently untrue that my statements have “no basis in fact or law.”
The so-called audit was conducted by conspiracy theorist and Republican operative Russell Ramsland who retooled an executive protection service into an election security operation with no qualifications whatsoever. His Allied Security Options Group is not a group. It is Russ Ramsland.

Ramsland is the same schmuck who claimed significant voting irregularities in Michigan were proven by counties that are actually in Minnesota. Apparently he mixed up MI with MN. In 2018 Tea Party presentation, as Vice explained:
[Ramsland] wasted no time in laying out the threat posed by the Deep State, which he defined as a secretive, nefarious cabal of government bureaucrats, Islamists, leftists, and establishment Republicans that coalesced in Nazi Germany more than 75 years ago. Deep state actors desperately want to take out President Trump, and true patriots had to act now to save him, Ramsland explained.
The point is, for Eastman to claim this as factual is intellectually dishonest given the source. If Eastman was unaware of the source — perhaps getting his information from Leaky Rudy — then he was reckless. On January 6 the Trump supporters were very angry. Eastman added considerable fuel to the fire that Trump lit.

Now, getting back to Brian S. Brown. Brown can claim that Eastman is the greatest legal scholar since Louis Brandeis. It is entirely irrelevant. Mr. Eastman's ethical lapses obscure any relevant legal wisdom he might have provided.

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