Everyone Take a Deep Breath. Are We Entering a McCarthy Era?

I am supplementing this “Cases and Controversies” section of my website to include a very recent case that has indeed sparked considerable controversy. I am co-counsel to John Eastman who has been involved in the investigation of all things relating to former President Donald Trump. I will be adding items to this section of my website from time to time.


John Eastman Statement Upon Self-Surrender in Fulton County

I am here today to surrender to an indictment that should never have been brought.  It represents a crossing of the Rubicon for our country, implicating the fundamental First Amendment right to petition the government for redress of grievances.  As troubling, it targets attorneys for their zealous advocacy on behalf of their clients, something attorneys are ethically bound to provide and which was attempted here by “formally challeng[ing] the results of the election through lawful and appropriate means.”  – An opportunity never afforded them in the Fulton County Superior Court.

Each Defendant in this indictment, no less than any other American citizen, is entitled to rely upon the advice of counsel and the benefit of past legal precedent in challenging what former Vice President Pence described as, “serious allegations of voting irregularities and numerous instances of officials setting aside state election law” in the 2020 election.  The attempt to criminalize our rights to such redress with this indictment will have – and is already having – profound consequences for our system of justice.

My legal team and I will vigorously contest every count of the indictment in which I am named, and also every count in which others are named, for which my knowledge of the relevant facts, law, and constitutional provisions may prove helpful.  I am confident that, when the law is faithfully applied in this proceeding, all of my co-defendants and I will be fully vindicated.

Statement on Behalf of John Eastman re: State of Georgia v. Donald Trump et al.,

The indictment in Georgia vs. Donald Trump and 18 others sets out activity that is political, but not criminal.  It goes hand-in-glove with the recent effort to criminalize lawful political speech and legal advice, in stark violation of constitutional rights to Freedom of Speech, Right to Petition the Government for Redress of Grievances, and the Right to Counsel.  Lawyers everywhere should be sleepless over this latest stunt to criminalize their advocacy.  This is a legal cluster-bomb that leaves unexploded ordinance for lawyers to navigate in perpetuity.  Dr. Eastman will challenge this indictment in any and all forums available to him.

Attorney Charles Burnham discusses his representation of Dr. John Eastman in the special counsel investigation and the indictment of former President Trump


Statement on Behalf of John Eastman Regarding United States v. Donald J. Trump Indictment

Almost fifteen years ago, John Eastman defense counsel Harvey Silverglate predicted in the book Three Felonies a Day: How the Feds Target the Innocent that the ever expanding federal criminal code was liable to be misused for improper political purposes.

This prediction finds its fulfillment in the current administration’s use of heretofore obscure federal statutes to indict its leading political opponent in multiple jurisdictions.

The latest indictment relies on a misleading presentation of the record to contrive criminal charges against Presidential candidate Trump and to cast ominous aspersions on his close advisors.

For example, the uninitiated reader of the indictment would have no idea that former Vice President Pence is on record stating that in the 2020 election there were “significant allegations of voting irregularities and numerous instances of officials setting aside state election law.”  This is but one example of the indictment’s false presentation of the record; countless more will be revealed in time.

With respect to questions as to whether Dr. Eastman is involved in plea bargaining, the answer is no. But if he were invited to plea bargain with either state or federal prosecutors, he would decline. The fact is, if Dr. Eastman is indicted, he will go to trial. If convicted, he will appeal. The Eastman legal team is confident of its legal position in this matter.


FORMER TRUMP ATTORNEY JOHN EASTMAN RESPONDS TO THE CALIFORNIA STATE BAR’S DECISION TO FILE A NOTICE OF DISCIPLINARY CHARGES

Los Angeles: California attorney, Dr. John Eastman, disputes “every aspect” of the action that has been filed against him by the State Bar, which is based entirely on his role as counsel to the former President of the United States following the 2020 election, according to Eastman’s attorney, Randall A. Miller. The complaint filed against Eastman that triggered today’s action by the State Bar is part of a nationwide effort to use the bar discipline process to penalize attorneys who opposed the current administration in the last Presidential election. Americans of both political parties should be troubled by this politicization of our nation’s state bars.

The Bar is challenging Dr. Eastman’s role as advisor and litigation counsel via a Notice of Disciplinary Charges, which asserts that he “misinterpreted” the law.” “The Bar’s action has less to do with an attorney’s inviolate [and scared] obligation of zealous advocacy owed by every attorney to every client [whether an elected official or a plumber,] and more to do with the chilling of those duties,” Miller noted.

Dr. Eastman’s representation included his evaluation of alternatives available to President Trump in the fluid and fast-moving aftermath of the 2020 election, which was fraught with illegality and serious allegations of fraud that had been raised by numerous state and federal legislators and others. Dr. Eastman was retained by former President Trump because of his significant expertise on the key constitutional issues at stake, including the Constitution’s assignment of plenary power to state legislatures to direct the manner of choosing presidential electors and the role of the Vice President in presiding over the electoral college certification process in Congress. 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.

“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. “ Fortunately for Dr. Eastman, that test has yet to come. Miller added, “The foundation of any engagement is that the lawyer shall protect the client’s interests, at every turn. This is includes raising all viable options. The attorney’s role is as an advisor, the client as the decider.” During the Trump representation, Miller says, Dr. Eastman acted consistent with those ethical obligations. Dr. Eastman was one of dozens advisors to the President; “He was a lawyer, not Rasputin.”

Harvey Silverglate, also part of Dr. Eastman’s overall legal team, added: “As a criminal defense and civil liberties attorney and writer for over a half-century, I have seen many miscarriages of justice caused by stampedes led by politicians, prosecutors and, alas, journalists. These investigations are made more dangerous by the ease with which one can be investigated and even indicted, as I’ve tried to explain in my 2009 book entitled Three Felonies a Day: How the Feds Target the Innocent. The California Bar’s decision to seek disciplinary action against an attorney in a case as hotly disputed and nuanced as this one is, both legally and factually, is equally troubling, and should be to all attorneys who recognize the importance of our adversarial system of justice.”

Dr. Eastman looks forward to the opportunity to present the record here, which is contrary to the Bar’s assertions. But in the meantime, we have made publicly available, here at Subtack, the fairly comprehensive response that Dr. Eastman provided to the bar investigators during the course of the investigation, a response which, in our view, demonstrated beyond question that Dr. Eastman’s legal analysis was well supported or at least “tenable” and therefore not something that the law allows to be the subject of discipline.

Dr. Eastman and his attorneys, joined by several other prominent jurists, attorneys and legal scholars (listed below), will hold a press conference via Zoom at 8:00 am Pacific time (11:00 am Eastern) on Friday, January 27. Registration required at https://us06web.zoom.us/webinar/register/WN_FYzYjnXKT4mju-aZMkjIKQ.

Please direct inquiries to Randall Miller, (213) 493-6400, Randy@millerlawapc.com, or Charles Burnham, (202) 386-6920, charles@burnhamgorokhov.com.

Anticipated Press Conference Participants:

Dr. John Eastman, former law school Dean and constitutional law professor, attorney for former President Trump Randall Miller, Partner, Miller Law Associates

Charles Burnham, Partner, Burnham & Gorokhov PLLC

Harvey Silverglate, co-founder of Foundation for Individual Rights in Education (FIRE), former member of the board of the Massachusetts American Civil Liberties Union, and author of Three Felonies a Day: How the Feds Target the Innocent (September 2009).

Hon. Edwin Meese III, the 75th Attorney General of the United States

Hon. Janice Rogers Brown, former Associate Justice of the California Supreme Court and Circuit Judge, U.S. Court of Appeals for the District of Columbia Circuit

Hon. Phillip Mautino, Los Angeles Superior Court Judge, Retired

Hon. Michael Gableman, former Justice, Wisconsin Supreme Court

Patrick McSweeney, former Deputy Assistant Attorney General, U.S. Department of Justice

Professor John Yoo, Emanuel Heller Professor of Law at the University of California-Berkeley; former General Counsel to the U.S. Senate Judiciary Committee and Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice

Kurt Olsen, one of the many attorneys involved with 2020 election litigation

Andrew Kloster, Attorney and founder of Personnel Policy Operations, an organization devoted to defending attorneys and public services who come under attack because of their work defending constitutional principles and an America First policy agenda.


Statement on Behalf of John Eastman Regarding December 19 January 6th Committee Hearing

A criminal “referral” from a congressional committee is not binding on the Department of Justice and carries no more legal weight than a “referral” from any American citizen.  In fact, a “referral” from the January 6th committee should carry a great deal less weight due to the absurdly partisan nature of the process that produced it.

At its inception, the January 6th committee had the resources and mandate to make important contributions in the area of Capitol Security, Electoral Count Act Reform and other areas of potential legislation.  Sadly, this opportunity has been squandered in favor of concocting a pretend “criminal case” from pretend prosecutors designed to create political advantage for the Democratic Party and stigmatize disfavored political groups.  The American people have been ill-served by the January 6th committee and its members.


Statement in Response to October 3, 2022 Filing by January 6 Committee in Eastman v. Thompson, et al.

The purpose of what lawyers refer to as a “privilege log” is specifically to identify claims of privilege while avoiding disclosing the substance of client materials to the prying eyes of those who, like the January 6 committee, seek to undermine the attorney-client relationship.  Judge Carter found Dr. Eastman’s privilege logs perfectly adequate to dismiss a majority of the January 6 Committee’s attempts to subvert attorney client privilege.

Two of the documents the January 6 Committee has seen fit to publicly disclose are emails that contain attorney work product (which is properly redacted) as well as some irrelevant banter among the lawyers.  The third is an email transmitting the fourth—a communication from Dr. Eastman’s client that was directly related to discussions about the substance of the brief that was filed the very next day.  While Judge Carter previously ruled that the attachment itself was not a privileged communication—a ruling that we complied with despite viewing it as incorrect—the Committee itself had held its objection to the transmittal email in abeyance until it notified counsel for Dr. Eastman that it was renewing its objections to all 576 documents it had previously held in abeyance, at which time we conducted an additional review in light of Judge Carter’s prior rulings and then promptly produced what we determined could be produced in light of the prior rulings.  In other words, these are far from being examples of what the Committee falsely claims to be Dr. Eastman’s “consistently unreliable” assertions of privilege.

Dr. Eastman, like all lawyers, is under a solemn obligation to protect client confidences.  The January 6 Committee is under no such obligation to keep the full results of its investigation secret from the public.  Dr. Eastman continues to urge all Americans to join him in calling on the Committee to release the full results of its investigation, including evidence not perceived to be favorable to the Democratic party’s electoral fortunes.  As Justice Louis Brandeis once noted: “Sunlight is said to be the best disinfectant.”


Statement on John Eastman August 31 Appearance Before Fulton County Special Grand Jury

In his appearance before the Fulton County Special Grand Jury, we advised our client John Eastman to assert attorney client privilege and the constitutional right to remain silent where appropriate. Out of respect for grand jury secrecy we will not disclose the substance of the questions or testimony.  We wish to thank the grand jurors for their service.

By all indications, the District Attorney’s Office has set itself on an unprecedented path of criminalizing controversial or disfavored legal theories, possibly in hopes that the federal government will follow its lead.  Criminalization of unpopular legal theories is against every American tradition and would have ended the careers of John Adams, Ruth Ginsburg, Thurgood Marshall and many other now-celebrated American lawyers.  We ask all interested observers of any political persuasion to join us in decrying this troubling development.

Charles Burnham, Esq.

Harvey Silverglate, Esq.