Inside Ex-CU Guest Prof John Eastman's Subpoena Over January 6 Attack

Professor John Eastman, circled, being touted by Trump advisor Rudy Giuliani at a rally prior to the January 6 attack on the U.S. Capitol.
CBS Los Angeles via YouTube
Professor John Eastman, circled, being touted by Trump advisor Rudy Giuliani at a rally prior to the January 6 attack on the U.S. Capitol.
We're guessing the powers-that-be at the University of Colorado Boulder are quietly thrilled about what's going on with John Eastman.

The former guest professor at CU's Benson Center for Western Civilization —a conservative-friendly project founded in the early 2000s to promote "study of the intellectual, artistic and political traditions that characterize Western civilization" — filed an intent to sue CU Boulder back in April, claiming that his classes were dumped because of his participation in the January 6 rally in Washington, D.C., that preceded that day's attack on the U.S. Capitol rather than low enrollment, as the university maintains. But no lawsuit has been filed, and the odds of one hitting court dockets anytime soon are falling fast in light of a growing focus on Eastman's role in the insurrection, highlighted by a congressional subpoena issued November 8.

Eastman, a law professor at California's Chapman University when he accepted the part-time CU gig, resigned from his position at that school a week after the actions of January 6. "Chapman and Dr. Eastman have agreed not to engage in legal actions of any kind, including any claim of defamation that may currently exist, as both parties move forward," Chapman announced on January 13.

Our October 26 report on Eastman focused on his Colorado ties — not just the stint at CU Boulder, for which he was paid $185,000, but also interviews he conducted in May with Denver talk-show host Peter Boyles that were cited in an October 23 Washington Post investigation titled "Ahead of Jan. 6, Willard hotel in downtown D.C. was a Trump team ‘command center’ for effort to deny Biden the presidency." According to the Post, Eastman was at the very center of this confab, charged with coming up with a rationale for why the election results should be nullified, and how then-Vice President Mike Pence could make it happen.

Since then, the Post has published much more material about Eastman and Pence, including an email exchange with Greg Jacob, an aide to the veep, in which the prof wrote, "Thanks to your bullshit, we are now under siege. The 'siege' is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened" — a reference to the completely specious claims of election fraud that continue to be spewed by ex-president and worst loser of all time Donald Trump.

Eastman's memo spelling out a strategy to overturn the election has also surfaced, despite it being labeled "PRIVILEGED AND CONFIDENTIAL." Here's the document's six-point plan:
1. VP Pence, presiding over the joint session (or Senate Pro Tempore Grassley, if Pence recuses himself), begins to open and count the ballots, starting with Alabama (without conceding that the procedure, specified by the Electoral Count Act, of going through the States alphabetically is required).

2. When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States. This would be the first break with the procedure set out in the Act.

3. At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment — is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.

4. Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the
representation from each state having one vote....” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.

5. One last piece. Assuming the Electoral Count Act process is followed and, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislature was determining the rules of the present one — a constitutional no-no (as Tribe has forcefully argued). So someone — Ted Cruz, Rand Paul, etc. — should demand normal rules (which includes the filibuster). That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.

6. The main thing here is that Pence should do this without asking for permission — either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit would have their past position — that these are non-justiciable\political questions — thrown back at them, to get the lawsuit dismissed. The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.
By the way, Pence declined to follow Eastman's suggestions — after consulting with former Vice President Dan Quayle.

Weeks before the privileged Eastman memo went public, the State Bar of California had formally requested an investigation into Eastman to determine if he'd violated rules of professional conduct — and that thirty-page document remains among the most thorough accounts of Eastman's actions in relation to January 6. Meanwhile, the interviews with Boyles are specifically footnoted in a November 8 letter from Bennie Thompson, chairman of the January 6 select committee in the U.S. House of Representatives, informing Eastman that he's been subpoenaed. The missive directs him to provide documents to the committee by November 22 and to appear before it on December 8.

It's unclear whether Eastman will comply with this edict. In the meantime, Randy Corporon, the local attorney who filed the intent to sue CU Boulder on the professor's behalf (Corporon is also a host on KNUS, which employs Boyles), offers this perspective on the latest developments: "I believe the truth about January 6 is coming out, slowly, and look forward to understanding the complete picture. Subpoenas are part of the process. I hope, with little faith, that the January 6 commission moves from political inquisition to fact-gathering and reporting."

Corporon adds: "I see no value or basis from which to respond to generic, nonspecific criticisms from politicians or reporters."

Click to read John Eastman's intent to sue the University of Colorado Boulder, as well as the Eastman memo, the congressional subpoena and the State Bar of California's investigation request.