Eastman Disbarment Trial, Part 1: Charges

Teri Sforza had an interesting piece in the Orange Lady last Sunday about the California Bar’s pursuing the disbarment of former Chapman Law School Dean John Eastman, who provided the legal foundation of what became the January 6 insurrection. At Vern’s request, I’m here to comment on Sforza’s story, on Eastman himself, and on the proceedings mentioned in the article.

I’m going to take this seriously and slowly. Today is the California State Bar’s Complaint against Eastman, the content of which ranges in my mind from highly persuasive to giving cause for concern. My next installment will address Eastman’s defense of his actions, which — based on Sforza’s summary — seems mostly limp but, in places, again gives cause for concern. Then I’m going to start digging into the content on both sides, trying to come to grips with it and suggesting both who I think is right where and what general lessons we can learn from it.

Given Tucker Carlson’s recent abysmal antics — trying to downplay the significance of the Jan. 6, 2021 insurrectionists’ attempt to block the certification of the 2020 election — and Trump still looking over-tanned, rested, and over-ready at the recent CPAC conference that unofficially kicks off the Republican race for President, it’s a good time to take a look at the role that Orange County’s most prominent conservative legal thinker had to have on the process (hint: large) and what should be done about it, ideally in a way that doesn’t set us onto a slippery slope or provide tools for other state bars to misuse powers that (I expect to find) are being used responsibly here.

1. THE STATE BAR COMPLAINT

[Note: I’ve reformatted the State Bar Complaint and taken out most of the legal references beyond case names, because anyone beyond the lay readership of this post can list click to see the original version of the material at the link. For those unfamiliar with the term “U.S.C.” in law, it stands for United States Code, our written federal, organized into 54 Broad titles (areas of concern within the law) each containing many many sections providing general federal laws., not USC.]

1. [JURISDICTION] John Charles Eastman (“respondent”) was admitted to the practice of law in the State of California on December 15, 1997. Respondent was a licensed attorney at all times pertinent to these charges and is currently a licensed attorney of the State Bar of California.
   
2. [INTRODUCTION] In or about December 2020, respondent began working with President Donald Trump (“Trump”) and his campaign to develop a legal and political strategy to dispute the results of the November 3, 2020 election, in which President Trump had lost his bid for reelection, by promoting the idea that the election was tainted by fraud, disregard of state election law, and misconduct by election officials.
   
3. In the months following the election, however, the Trump campaign received information from numerous credible sources, including Attorney General of the United States William Barr and members of Trump’s inner circle of advisors, that there was no evidence of widespread election fraud or illegality that could have affected the outcome of the election. On or about December 1, 2020, Attorney General Barr, who headed the United States Department of Justice, which had monitored state elections for fraud and illegality, publicly stated that “to date, we have not seen fraud on a scale that could have effected a different outcome in the election.”
   
4. Moreover, by early January 2021, more than 60 courts had dismissed cases allegingfraud in the presidential election. Many of the cases were dismissed based on lack of standing or procedural issues. But approximately 30 of the cases were dismissed or had injunctive relief denied based on determinations by a judge that the pleadings failed to allege facts sufficient to state a claim or that no actual evidence of election fraud had been presented, or after an evidentiary hearing and a finding that the evidence presented by the plaintiffs was insufficient on the merits. For example, on or about November 6, 2020, in Michigan, a court denied a request for injunctive relief, concluding that the plaintiffs’ motion was “based upon speculation and conjecture” and that there was “no evidence to support accusations of voter fraud.” (Stoddard v. City Election Comm’n). On or about November 21, 2020, in Pennsylvania, a court granted a motion to dismiss some claims based on lack of standing but others for failure to state a claim, concluding that the allegations of election fraud rested on “strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.” (Donald J. Trump for President, Inc. v. Boockvar.) On or about December 8, 2020, in Arizona, the state’s Supreme Court concluded that the trial court was correct in its determination, after an evidentiary trial, that the plaintiff had failed “to present any evidence of ‘misconduct,’ ‘illegal votes’ or that the Biden Electors ‘did not in fact receive the highest number of votes for office,’ let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results.” (Ward v. Jackson.)
   
5. As a result of information received from credible sources and numerous court rulings, by no later than on or about December 9, 2020, respondent knew, or was grossly negligent in not knowing, that there was no evidence upon which a reasonable attorney would rely of election fraud or illegality that could have affected the outcome of the election, and that there was no evidence upon which a reasonable attorney would rely that the election had been “stolen” by the Democratic Party or other parties acting in a coordinated conspiracy to fraudulently “steal” the election from Trump.
   
6. Nevertheless, from on or about December 9, 2020, and continuing to at least on or about January 6, 2021, respondent continued to work with Trump and others to promote the idea that the outcome of the election was in question and had been stolen from Trump as the result of fraud, disregard of state election law, and misconduct by election officials. In doing so, respondent violated his obligations as an attorney in two ways. First, he provided legal advice, formulated legal strategies, and engaged in litigation based on, and made public statements propounding, allegations of election fraud that he knew, or was grossly negligent in not knowing, were false. Second, based on misinterpretations of historical sources, misinterpretations of law review articles, and law review articles that he knew or was grossly negligent in not knowing were themselves fundamentally flawed, he provided, and proposed actions based on, legal advice regarding the unilateral authority of the Vice President to disregard or delay the counting of electoral votes that he knew, or was grossly negligent in not knowing, was contrary to and unsupported by the historical record and established legal authority and precedent, including the Electoral Count Act and the Twelfth Amendment, such that no reasonable attorney with expertise in constitutional or election law would have concluded that the Vice President was legally authorized to take the actions respondent proposed.

COUNT ONE
Case No. 21-O-11801
Business and Professions Code section 6068(a)
[Failure to Support the Constitution and Laws of the United States]

7. Beginning no later than on or about December 23, 2020 and continuing to at least on or about January 6, 2021, respondent violated his obligation under Business and Profession Code section 6068(a) to uphold the Constitution and the laws of the United States by engaging in a course of conduct that included the acts set out in paragraphs 8 through 30 below to plan, promote, execute, and assist Trump in executing a strategy for Trump to overturn the legitimate results of the election by obstructing the count of electoral votes of certain states, which strategy
   respondent knew, or was grossly negligent in not knowing, was not supported by either the facts or law.
   
8. On or about December 23, 2020, respondent wrote and sent to an attorney and strategic advisor to Trump’s 2020 presidential campaign, with the intent of providing legal advice to Trump and Vice-President Michael Pence (“Pence”), a two-page legal memorandum (the “two-page memo”) that, based on what the memo asserted to be Pence’s legal authority to take unilateral action with respect to the electoral votes of certain states at the Joint Session of Congress to count electoral votes on January 6, 2021, outlined alternative strategies for action based on Pence refusing to count the electoral votes from seven states that had voted for candidate Joe Biden (“Biden”). Those seven states were Arizona, Georgia, Michigan, Pennsylvania, Nevada, New Mexico, and Wisconsin.

9. With respect to these seven states, respondent proposed that Pence “announce[ ] that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States.” Respondent then proposed two alternative courses of action. Under the first, Pence would “announce[ ] that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.” Without electors appointed for those states, Trump’s 228 electoral votes would constitute a majority of the 454 appointed electors. Respondent advised “Pence [to] then gavel[ ] President Trump as re-elected.” Under the second course of action, after “[h]owls, of course, from the Democrats,” Pence would concede that 270 electoral votes were required for a majority. Under the Twelfth Amendment, when no candidate receives a majority of votes cast by the appointed electors, the House of Representatives chooses the President voting by state delegation. Because Republicans controlled 26 state delegations,
   respondent advised that “President Trump is re-elected there as well.”
   
10. Respondent advised Pence to take these actions based on the two-page memo’s assertion that the “7 states have transmitted dual slates of electors to the President of the Senate.” Respondent knew, or was grossly negligent in not knowing, that this assertion was false and misleading, in that, as respondent knew at the time: (a) pursuant to 3 U.S.C. § 6, the governor of each of those states had submitted a certificate of ascertainment indicting that the Biden electors, not the Trump electors, had been appointed because the Biden electors received more votes in those state’s election; (b) no other state official of any of those states had submitted a purported certificate of ascertainment naming Trump electors; and (c) as a result, no legal authority on behalf of any state had taken any action to support the contention that Trump electors were the legitimate electors for any of the seven states. Indeed, subsequently, on or about January 10, 2021, respondent acknowledged in an email that the purported Trump electors from these seven states, who had met on December 14, cast their electoral votes, and themselves transmitted those votes to the Vice President, “had no authority” because “[n]o legislature [had] certified them.”
    
11. On or about January 2, 2021, respondent appeared on the “Bannon’s War Room” radio program, during which he was interviewed by program host Steve Bannon. According to Bannon, the radio program had tens of millions of listeners. Respondent stated that there was “massive evidence” of fraud involving absentee ballots in the November 3, 2020, presidential election, “most egregiously in Georgia and Pennsylvania and Wisconsin.” Respondent further stated that there had been “more than enough” absentee ballot fraud “to have affected the outcome of the election.” Respondent made these statements with the intent to encourage the audience listening to the radio program and the general public to question the legitimacy of the election results. Respondent knew, or was grossly negligent in not knowing, that these allegations regarding absentee ballot fraud were false and misleading, as respondent knew at the time that there was no evidence upon which a reasonable attorney would rely of absentee ballot fraud in any state in sufficient numbers that could have affected the outcome of the election. In fact, respondent was informed by numerous credible sources, including the Attorney General of the United States, that there was no evidence of widespread election fraud or illegality that could have affected the outcome of the election.

12. On or about January 3, 2021, respondent wrote and sent to an attorney and strategic advisor to Trump’s 2020 presidential campaign, with the intent of providing legal advice to Trump and Pence, a six-page legal memorandum (the “six-page memo”) that, based on what the memo asserted to be Pence’s legal authority to take unilateral action with respect to the electoral votes of certain states on January 6, 2021, elaborated on the legal theory and strategies for action by Pence initially presented in the two-page memo. The six-page memo advised that Pence had legal authority to take various actions, including “determin[ing] on his own which [slate of electors] is valid” or “adjourn[ing] the joint session of Congress.” The advice in the six-page memo was again based on the assertion that there were “7 states with multiple ballots.” Respondent knew, or was grossly negligent in not knowing, that this assertion was false and misleading, in that, as respondent knew at the time: (a) pursuant to 3 U.S.C. § 6, the governor of each of those states had submitted a certificate of ascertainment indicting that the Biden electors, not the Trump electors, had been appointed because the Biden electors received more votes in the election; (b) no other state official of any of those states had submitted a purported certificate of ascertainment naming Trump electors; and (c) as a result, no legal authority on behalf of any state had taken any action to support the contention that Trump electors were the legitimate electors for any of the seven states. Indeed, subsequently, on or about January 10, 2021, respondent acknowledged in an email that the purported the Trump electors from these seven states, who had met on December 14, cast their electoral votes, and themselves transmitted those votes to the Vice President, “had no authority” because “[n]o legislature [had] certified them.”

13. The six-page memo asserted that the election was tainted by “outright fraud (both traditional ballot stuffing and electronic manipulation of voting tabulation machines).” Respondent knew, or was grossly negligent in not knowing, that this assertion was false and misleading because there was no evidence upon which a reasonable attorney would rely of “outright fraud,” including either “traditional ballot stuffing” or “electronic manipulation of the voting tabulation machines,” in any state involving enough votes to affect the outcome of the election.
    
14. The six-page memo presented alternative scenarios for action under the heading “War Gaming the Alternatives.” Those scenarios included several in which Pence, as the “ultimate arbiter,” either unilaterally counted no electors for each of the seven states that had purportedly submitted “dual slates of electors,” unilaterally sent the election to the House of Representatives under the procedures established by the Twelfth Amendment, or unilaterally adjourned the Joint
    Session without counting the electoral votes in the hope that Republican legislatures in the seven states would later appoint or certify a slate of Trump electors.
    
15. The six-page memo stated that the proposed plan was “BOLD” but further stated that “this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules, therefore.” Respondent knew, or was grossly negligent in not knowing, that this assertion was false and misleading because there was no evidence upon which a reasonable attorney would rely of any widespread election fraud or illegality, much less any widespread election fraud or illegality resulting from a strategic Democrat plan to systematically flout existing election laws, that could have affected the outcome of the election.

16. The six-page memo advised that if Pence “determine[d] that the ongoing election challenges must conclude before ballots can be counted, and adjourns the joint session of Congress,” then “[t]aking the cue, state legislatures [could] convene, order a comprehensive audit/investigation of the election returns in their states, and then determine whether the slate of electors initially certified is valid, or whether the alternative slate of electors should be certified by the legislature.” Respondent cited 3 U.S.C. § 2 as the statutory basis for state legislatures’ purported legal authority to appoint or certify electors after Election Day. Respondent knew, or was grossly negligent in not knowing, that 3 U.S.C. § 2 did not authorize any state legislature to appoint or certify electors after Election Day in the factual circumstances present in the 2020 election.
    
17. The two-page and six-page memos proposed that Pence exercise unilateral authority to resolve purported disputes regarding electoral votes or delay the counting of electoral votes. Respondent proposed that Pence exercise this unilateral authority in the context of proposing a detailed plan for Pence to take actions to reverse the legitimate results of the 2020 election to secure Trump’s re-election in the context of a legal proceeding—the counting of electoral votes at the Joint Session of Congress—that was not a judicial proceeding before a court. Respondent advised Trump and Pence to “[l]et the other side challenge [Pence’s] actions in court” and suggested that the plaintiffs “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.” Respondent’s proposed plan thus presupposed that Pence would take unilateral action without subsequent judicial review of its legality.
    
18. Respondent knew, or was grossly negligent in not knowing, that the courses of action he proposed to Pence in the two and six page memos were contrary to and unsupported by the historical record, and contrary to and unsupported by established legal authority and precedent, including the Electoral Count Act and the Twelfth Amendment. Respondent’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 that respondent proposed. Moreover, in the course of an email exchange with another individual in early October 2020, respondent himself had recognized that these courses of action were improper. In that earlier email exchange, respondent stated that he he did not agree that Pence, who serves as President of the Senate, could determine which votes to count on January 6, 2021, because “3 U.S.C. § 12 says merely that [the President of the Senate] is the presiding officer, and then it spells out specific procedures, presumptions, and default rules for which slates will be counted. Nowhere does it suggest that the President of the Senate gets to make the determination on his own. § 15 doesn’t, either.” In that earlier email exchange, respondent further stated that he did not agree that, in the event of a dispute between a state legislature and the state’s governor or popular vote regarding the appointment of electors, the legislature determines the appointment of electors, stating “I don’t think [Article II] entitles the Legislature to change the rules after the election and appoint a different slate of electors in a manner different than what was in place on election day. And 3 U.S.C. § 15 gives dispositive weight to the slate of electors that was certified by the Governor in accord with 3 U.S.C. § 5.”

19. On January 4, 2021, respondent and Trump invited Pence, Pence’s White House Counsel Greg Jacob (“Jacob”), and Pence’s Chief of Staff Marc Short (“Short”) to the Oval Office to discuss respondent’s memos and the plan for Pence to take unilateral action that would result in Trump’s re-election. During the meeting, respondent presented only two courses of action for Pence to take on January 6: to reject the electors from seven states that respondent falsely and misleadingly asserted had submitted “dual slates of electors,” or delay the count to give those states’ legislatures time to certify Trump’s electors using a purported authority that respondent knew, or was grossly negligent in not knowing, they did not possess. During the meeting on January 4, Pence stated to respondent that he did not possess the legal authority to carry out either of respondent’s proposals.

20. On January 5, 2021, respondent met again with Jacob and Short. At the meeting, respondent stated “I’m here asking you to reject the electors.” Jacob and respondent debated the merits of respondent’s legal arguments. Over the course of their discussion, respondent retreated from his initial request “to reject the electors,” shifting focus to asking Pence to delay the count because delaying the count would be more “palatable.” During the discussion, respondent 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.
    
21. The actions respondent proposed in his two-page and six-page memos, and that he urged Pence to take in their meetings on January 4 and 5, 2021, provided support for messages Trump sent to his followers on Twitter on the morning of January 6, 2021. On January 6, 2021, at approximately 1:00 a.m., Trump sent a message to his followers on Twitter stating, “If Vice President @Mike_Pence comes through for us, we will win the Presidency . . . Mike can send it
    back!” At approximately 8:17 a.m., Trump sent another message on Twitter stating, “States want to correct their votes . . . All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”
    
22. On or about January 6, 2021, respondent spoke to a crowd of tens of thousands of people who attended a rally, promoted as a “Save America” march, at the Ellipse of the National Mall in Washington, D.C. Respondent’s speech was broadcast live on television. Respondent was introduced by Rudy Giuliani as “Professor Eastman,” and described as “one of the preeminent constitutional scholars in the United States.” In his speech, with the intent of promoting doubt in the results of the election, respondent stated to the audience, “We know there was fraud, traditional fraud that occurred. We know that dead people voted.” Respondent 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 respondent 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. In fact, while Trump claimed that some 5,000 ballots in Georgia were cast by deceased voters, the Georgia State Election Board found just four such votes, all of which had been returned by relatives. Similarly, Michigan’s Office of the Auditor General determined that only 1,616 votes in Michigan, or 0.03% of the total ballots, were cast by voters who were deceased on Election Day and primarily involved people who were alive when they voted prior to Election Day. And, the Nevada Secretary of State determined that only 10 dead voters had ballots cast in their names.

23. During his January 6 speech at the Ellipse, respondent also stated that Dominion electronic voting machines had fraudulently manipulated the election results during the November 3, 2020, presidential election and during the January 5, 2021, run-off election in Georgia for its two Senate seats. Respondent stated that “[t]hey” put ballots “in a secret folder in the machines, sitting there waiting until they know how many they need,” and that after the polls closed, “unvoted ballots” were matched with “an unvoted voter” to fraudulently change the election totals in favor of Joe Biden and the Democratic candidates in the Georgia runoff election. Respondent further stated that analysis of the vote percentages showed that “they were unloading the ballots from that secret folder, matching them—matching them to the unvoted voter and voila we have enough votes to barely get over the finish line.” Respondent knew, or was grossly negligent in not knowing, that these statements were false and misleading in that, as respondent knew at the time:
    
    a) There was no evidence upon which a reasonable attorney would rely of fraud through electronic manipulation of Dominion voting tabulation machines. In fact, respondent knew that on or about November 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.” Furthermore, no reliable evidence emerged after November 12, 2020, that there was any electronic manipulation of voting tabulation.
    
    b) No reasonable expert in statistical analysis of election results would conclude that the vote percentages related to he Dominion voting machines indicated that the machines had been used to fraudulently manipulate the election results.

24. On January 6, 2021, before the Joint Session of Congress began, Pence publicly rejected respondent’s proposed plan in a written statement that concluded: “It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.” Respondent, however, concluded his January 6 speech at the Ellipse by stating: “And all we are demanding of Vice President Pence is this afternoon at 1:00 he let the legislators of the state look into this so we get to the bottom of it, and the American people know whether we have control of the direction of our government, or not. We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done. And anybody that is not willing to stand up to do it, does not deserve to be in the office. It is that simple.” Respondent knew, or was grossly negligent in not knowing, that this assertion that Pence had the authority to delay the counting of electoral votes at the Joint Session of Congress for any reason, including to give states time to investigate purported voting irregularities, was contrary to and unsupported by the historical record; that it was contrary to and unsupported by established legal authority and precedent, including the Electoral Count Act and the Twelfth Amendment; and that no reasonable attorney with expertise in constitutional or election law would conclude that Pence was legally authorized to delay the counting of electoral votes at the Joint Session of Congress to give states time to investigate purported voting irregularities.
    
25. After respondent completed his speech, Trump took the podium and stated to the crowd and television audience: “Thank you very much, John. . . . John is one of the most brilliant lawyers in the country, and he looked at this and he said, ‘What an absolute disgrace that this can be happening to our Constitution.’ . . . Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it.” Trump concluded his speech by urging his supporters to walk with him to the Capitol: “Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you, we’re going to walk down, we’re going to walk down. . . . [W]e’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.”

26. After Trump’s speech, hundreds of protesters left the rally and stormed the Capitol Building. Some of the protestors were armed with weapons, and the mob overwhelmed law enforcement and violently broke into the Capitol in an attempt to prevent the Joint Session of Congress from counting the electoral votes that would result in Biden’s victory. While the violent protestors were attacking the Capitol Building, respondent and Trump continued to urge Pence to delay the electoral vote count.
    
27. Shortly after 2:00 p.m., protestors broke windows and climbed into the Capitol Building, opening doors for other protestors to enter the building. At approximately 2:20 p.m., Secret Service agents removed Pence from the Senate floor, and the Senate and House were abruptly called to recess as the mob of protestors moved further into the building. At approximately 2:24 p.m., Trump posted a message on Twitter stating “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.”
    
28. At approximately 12:14 p.m. on January 6, 2021, Jacob had sent to respondent an email that stated, “I just don’t in the end believe that there is a single Justice on the United States Supreme Court, or a single judge on any of our Courts of Appeals, who is as ‘broad minded’ as you when it comes to the irrelevance of statutes enacted by the United States Congress, and followed without exception for more than 130 years.” The email closed by stating that Jacob “ha[d] run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition, and essentially entirely made up.” At approximately 2:25 p.m., respondent replied to Jacob’s email, stating, “You think you can’t adjourn the session because the [Electoral Count Act] says no adjournment, while the compelling evidence that the election was stolen continues to build and is already overwhelming? 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 the American people can see for themselves what happened.” Respondent knew that his statement that there was “compelling” and “overwhelming” evidence that the election was “stolen” was false and misleading, in that, as respondent knew at the time:
    
    a) There was no evidence upon which a reasonable attorney would rely that the election was “stolen” by the Democratic Party or any other actors. In fact, respondent had been informed by numerous credible sources, including the Attorney General of the United States, and knew, or was grossly negligent in not knowing, that numerous courts had held, that there was no evidence of widespread election fraud or illegality that could have affected the outcome of the election.
    
    b) There was no evidence upon which a reasonable attorney would rely of fraud through electronic manipulation of voting tabulation machines. In fact, respondent knew that on or about November 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.” Furthermore, no reliable evidence emerged after November 12, 2020, that there was any electronic manipulation of voting tabulation.

29. At approximately 5:40 p.m., Capitol Police cleared and secured the Capitol building, and Congressional leaders announced that they would proceed with counting the electoral votes. At approximately 6:09 p.m., respondent sent Jacob another email which stated that “adjourn[ing] to allow the state legislatures to continue their work” was the “most prudent course.”
    
30. At approximately 11:32 p.m., after a nearly nine-hour delay, the House and Senate resumed the Joint Session. In an email to Jacob sent at approximately 11:44 p.m. on January 6, 2021, respondent stated, “The Senate and House have both violated the Electoral Count Act this evening – they debated the Arizona objections for more than 2 hours. Violation of 3 USC 17. And the VP allowed further debate or statements by leadership after the question had been voted upon. Violation of 3 USC 17. And they had that debate upon motion approved by the VP, in violation of the requirement in 3 USC 15 that after the vote in the separate houses, ‘they shall immediately again meet.’ So now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed, I implore you to consider one more relatively minor violation [of the law] and adjourn 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.” At approximately 3:42 a.m. on January 7, 2021, Pence announced that a majority of votes in the Electoral College votes had been cast for Biden and that Biden had thus been elected to the presidency.

31. In engaging in the course of conduct that included the acts set forth in paragraphs 8 through 30 above, by which respondent proposed and attempted to convince Pence to execute a plan unilaterally to reject the electoral votes of certain states or delay the count of electoral votes, respondent did not act with intent either to reach an accurate and reasonable legal conclusion regarding the scope of Pence’s authority under the Twelfth Amendment and the Electoral Count Act or to take adequate steps to form an accurate and reasonable determination of whether the election was affected by fraud or illegality involving enough votes to have affected the outcome of the election.
    
32. By engaging in the course of conduct that included the acts set forth in paragraphs 8 through 30 above, respondent willfully failed to support the Constitution and the laws of the United States, in violation of Business and Professions Code section 6068(a), in that:
    
    a) Without legal or factual support, respondent sought to have Vice President Pence unilaterally disregard the electoral votes of certain states or delay the counting of electoral votes at the Joint Session of Congress, in violation of Article II, Section 1, and the Twelfth Amendment of the United States Constitution and the Electoral Count Act (3 U.S.C. § 15);
    
    b) Without legal or factual support, respondent sought to reverse the outcome of the presidential election by depriving the voters of certain states of their right to have their votes in the 2020 election determine their states’ electoral votes, in violation of those states’ laws, federal statutes, and the United States Constitution; and
    
    c) Respondent participated in numerous overt acts in furtherance of a shared plan with Trump and others to pressure Pence to, without legal or factual support, reject the electoral votes of certain states or delay the electoral count, and thereby dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021, in violation of 18 U.S.C. § 371.
    
    COUNT TWO Case No. 21-O-11801
    Business and Professions Code section 6068(d)
    [Seeking to Mislead a Court]
    
33. On or about December 7, 2020, the State of Texas filed a Motion for Leave to File Bill of Complaint in the United States Supreme Court, initiating the lawsuit Texas v. Pennsylvania, against Pennsylvania, Georgia, Michigan, and Wisconsin (“Defendant States”), whose electors were pledged to vote for Joe Biden in the 2020 presidential election. The lawsuit “challeng[ed]” the Defendant States’ “administration of the 2020 presidential election.” It claimed that “government officials in the defendant states of Georgia, Michigan, and Wisconsin, and the Commonwealth of Pennsylvania” had “[u]s[ed] the COVID19 pandemic as a justification” to “usurp their legislatures’ authority and unconstitutionally revised their state’s election statutes.”
    
34. The lawsuit made three primary allegations:
    
    a) First, it alleged “[n]on-legislative actors’ purported amendments to States’ duly enacted election laws, in violation of the Electors Clause’s vesting State legislatures with plenary authority regarding the appointment of presidential electors.”
    
    b) Second, it alleged “[i]ntrastate differences in the treatment of voters, with more favorable [treatment] allotted to voters – whether lawful or unlawful – in areas administered by local government under Democrat control and with populations with higher ratios of Democrat voters than other areas of Defendant States.”
    
    c) Third, it alleged “[t]he appearance of voting irregularities in the Defendant States that would be consistent with the unconstitutional relaxation of ballot-integrity protections in those States’ election laws.”
    
35. The lawsuit sought an order from the Supreme Court to “enjoin the use of unlawful election results without review and ratification by the Defendant States’ legislatures and remand to the Defendant States’ respective legislatures to appoint Presidential Electors in a manner consistent with the Electors Clause and pursuant to 3 U.S.C. § 2.”
    
36. Texas’ Motion for Leave to File Bill of Complaint made numerous specific factual allegations, including the following:
    
    a) Citing “rampant lawlessness arising out of Defendant States’ unconstitutional acts,” the lawsuit asserted that “[t]aken together, these flaws affect an outcome-determinative numbers of popular votes in a group of States that cast outcome-determinative numbers of electoral votes.”
    
    b) “Statewide election officials and local election officials in Philadelphia and Allegheny Counties, aware of the historical Democrat advantage in those counties, violated Pennsylvania’s election code and adopted the differential standards favoring voters in Philadelphia and Allegheny Counties with the intent to favor former Vice President Biden.”
    
    c) “The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000. For former Vice President Biden to win these four States collectively, the odds of that event happening decrease to less than one in a quadrillion to the fourth power (i.e., 1 in 1,000,000,000,000,000).”
    
    d) “The same less than one in a quadrillion statistical improbability of Mr. Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin— independently exists when Mr. Biden’s performance in each of those Defendant States is compared to former Secretary of State Hilary Clinton’s performance in the 2016 general election and President Trump’s performance in the 2016 and 2020 general elections. Again, the statistical improbability of Mr. Biden winning the popular vote in these four States collectively is 1 in 1,000,000,000,000,000.”
    
37. On or about December 9, 2020, respondent filed in the Supreme Court a motion on behalf of President Donald Trump to intervene in Texas v. Pennsylvania in his capacity as a candidate for re-election and a proposed Bill of Complaint, thereby attempting to join the case as a plaintiff. In his motion, respondent expressly adopted the allegations contained in the Motion for Leave to File Bill of Complaint filed by Texas on December 7, 2020.
    
38. Respondent knew that the factual allegations in the motion filed by Texas were false and misleading, in that, as respondent knew at the time:
    
    a) There was no evidence upon which a reasonable attorney would rely of fraud in any state election in sufficient numbers that could have affected the outcome of the election.
    
    b) There was no evidence upon which a reasonable attorney would rely that election officials in Philadelphia and Allegheny Counties had acted with the intent to favor Biden in the election through the alleged violations of election codes or adoptions of differential standards, or that the alleged violations of election codes or adoptions of differential standards “affect[ed] an outcome-determinative numbers of popular votes.”
    
    c) Texas’ claims that the odds of Biden winning the popular vote in the Defendant States were less than one in a quadrillion were based on statistical analysis that no reasonable expert on statistical analysis would agree with. The claim was supported by a declaration from Charles Cicchetti, who has a Ph.D. in economics. Experts in statistics were highly critical of Cicchetti’s statistical analysis and found that he based his analysis on erroneous assumptions about the ways that votes are distributed among geographic regions, demographics, and voting methods.
    
39. By expressly adopting these false and misleading statements and presenting them to the Supreme Court as a basis of relief for Trump, respondent sought to mislead the Supreme Court by an artifice or false statement of fact or law, in willful violation of Business and Professions Code, section 6068(d).
    
    COUNT THREE
    Case No. 21-O-11801
    Business and Professions Code section 6106
    [Moral Turpitude – Misrepresentation]
    
40. The allegations in paragraphs 8 through 10 above are incorporated here by reference.
    
41. On or about December 23, 2020, in the two-page memo that respondent wrote and sent to an attorney and strategic advisor to Trump’s 2020 presidential campaign, with the intent of providing legal advice to Trump and Pence, respondent asserted that seven states that had voted for Biden (Arizona, Georgia, Michigan, Pennsylvania Nevada, New Mexico, and Wisconsin) “have transmitted dual slates of electors to the President of the Senate.” Respondent knew that this assertion was false and misleading in that, as respondent knew at the time: a) Pursuant to 3 U.S.C. § 6, the governor of each of those states had submitted a certificate of ascertainment naming the Biden electors, not Trump electors; b) No other state official of any of those states had submitted a purported certificate of ascertainment naming Trump electors; and c) As a result, no legal authority on behalf of any state had taken any action to support the contention that Trump electors were the legitimate electors for any of the seven states.
    
42. By including this false and misleading assertion as a basis for the alternative legal strategies provided in the two-page memo, respondent committed an act involving moral turpitude, dishonesty, and corruption in willful violation of Business and Professions Code section 6106.
    
43. A violation of section 6106 may result from intentional conduct or grossly negligent conduct. Respondent is charged with committing intentional misrepresentation. However, should the evidence at trial demonstrate that respondent committed misrepresentation as a result of gross negligence, respondent must still be found culpable of violating section 6106 because misrepresentation through gross negligence is a lesser included offense of intentional misrepresentation.
    
    COUNT FOUR
    Case No. 21-O-11801 Business and Professions Code section 6068(d)
    [Seeking to Mislead a Court]
    
44. On or about December 31, 2020, respondent, as co-counsel, filed in the Northern District of Georgia a Verified Complaint for Emergency Injunctive and Declaratory Relief on behalf of President Donald Trump in Trump v. Kemp.
    The complaint requested an emergency injunction to de-certify Georgia’s election results, alleging that Georgia’s manner of conducting the election violated the Electors Clause.
    
45. The Complaint alleged that various aspects of the administration of Georgia’s election were fraudulent or unlawful. The alleged fraudulent or unlawful actions included:
    
    a) Georgia election officials allowed unqualified individuals to register and vote, allowed convicted felons still serving their sentence to vote, allowed underaged individuals to register and then vote, allowed unregistered or late registered individuals to vote, allowed individuals to vote who had moved across county lines, allowed individuals to vote who had registered at a P.O. Box, church, or courthouse rather than their residence, and accepted votes cast by deceased individuals.
    
    b) Fulton County election officials “remove[d] suitcases of ballots from under a table where they had been hidden, and processed those ballots without open viewing by the public in violation of [state law].”

46. Respondent knew that these allegations regarding the administration of Georgia’s election were false and misleading, in that, as respondent knew at the time:
    
    a) There was no evidence upon which a reasonable attorney would rely that the alleged irregularities in Georgia, even collectively, occurred in sufficient number as to affect the outcome of the election in Georgia, as the margin of votes for Biden in Georgia was over 11,000 votes, and there was no evidence upon which a reasonable attorney would rely that the allegedly fraudulent or unlawful actions in the administration of Georgia’s election approached that margin.
    
    b) Fulton County election officials did not remove a suitcase of hidden ballots from under a table out of view of election observers and fraudulently process the ballots. In fact, video evidence established that the ballots at issue were in a room filled with people including election monitors, until the boxes—not suitcases—containing the ballots were placed under a table in preparation for the poll watchers to leave for the evening. Those boxes were reopened and their contents retrieved and scanned before poll watchers left when the state official monitor intervened, instructing the workers that they should remain to tabulate the votes. Furthermore, based upon the claim of fraudulent conduct, the Georgia Secretary of State conducted an investigation and determined that the video evidence did not show secreting and counting of illegal ballots, and there was no evidence of improper activity.
    
47. By including these false and misleading statements in the Verified Complaint for Emergency Injunctive and Declaratory Relief, respondent sought to mislead the court by an artifice or false statement of fact or law, in willful violation of Business and Professions Code, section 6068(d).

COUNT FIVE
Case No. 21-O-11801
Business and Professions Code section 6106
[Moral Turpitude – Misrepresentation]

48. The allegations in paragraph 11 above are incorporated here by reference.
    
49. On or about January 2, 2021, respondent appeared on the “Bannon’s War Room” radio program, during which he was interviewed by program host Steve Bannon. According to Bannon, the radio program had tens of millions of listeners. Respondent stated that there was “massive evidence” of fraud involving absentee ballots in the November 3, 2020 presidential election, “most egregiously in Georgia and Pennsylvania and Wisconsin.” Respondent further stated that there had been “more than enough” absentee ballot fraud “to have affected the outcome of the election.” Respondent made these statements with the intent to encourage the audience listening to the radio program and the general public to question the legitimacy of the election results.
    
50. Respondent knew, or was grossly negligent in not knowing, that these allegations regarding absentee ballot fraud were false and misleading, as respondent knew at that time that there was no evidence upon which a reasonable attorney would rely of absentee ballot fraud in any state in sufficient numbers that could have affected the outcome of the election.
    
51. By making these false and misleading statements, with the intent to encourage the general public to question the legitimacy of the election results, respondent committed an act involving moral turpitude, dishonesty, and corruption in willful violation of Business and Professions Code section 6106.
    
52. A violation of section 6106 may result from intentional conduct or grossly negligent conduct. Respondent is charged with committing intentional misrepresentation. However, should the evidence at trial demonstrate that respondent committed misrepresentation as a result of gross negligence, respondent must still be found culpable of violating section 6106 because misrepresentation through gross negligence is a lesser included offense of intentional misrepresentation.
    
    COUNT SIX
    Case No. 21-O-11801
    Business and Professions Code section 6106
    [Moral Turpitude – Misrepresentation]
    
53. The allegations in paragraphs 12 through 16 above are incorporated here by reference.
    
54. On or about January 3, 2021, in the six-page memo that respondent wrote and sent to an attorney and strategic advisor to Trump’s 2020 presidential campaign, with the intent of providing legal advice to Trump and Pence, respondent stated the following regarding the 2020 presidential election:
    
    a) There had been “outright fraud” through “electronic manipulation of voting tabulation machines.”
    
    b) There were “dual slates of electors from 7 states,” because the Trump electors in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin had met on December 14, 2020, cast their electoral votes for Trump, and transmitted those votes to Pence.
    
    c) The State of Michigan “[m]ailed out absentee ballots to every registered voter, contrary to statutory requirement that voter apply for absentee ballots.”
    
    d) “[T]his Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage.”
    
55. Respondent knew that these statements were false and misleading, in that, as respondent knew at the time:
    
    a) There was no evidence upon which a reasonable attorney would rely of fraud through electronic manipulation of voting tabulation machines. Respondent knew that on or about November 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.” Furthermore, no reliable evidence emerged after November 12, 2020, that there was any electronic manipulation of voting tabulation.
    
    b) No states had submitted legitimate, competing slates of electors. The governors of Arizona, Georgia, Michigan, Pennsylvania Nevada, New Mexico, and Wisconsin had each submitted a certificate of ascertainment pursuant to 3 U.S.C. § 6 naming the Biden electors, not Trump electors. No other state official of any of those states had submitted a purported certificate of ascertainment naming the Trump electors, and no legal authority on behalf of any state had taken any action to support the contention that the Trump electors were the legitimate electors for any of the seven states.
    
    c) The State of Michigan mailed to every registered voter applications to vote by mail, not absentee ballots. That action did not violate the state’s prohibition on sending absentee ballots without a prior request. Moreover, there was no evidence upon which a reasonable attorney would rely that illegal votes by absentee ballots in Michigan had affected the outcome of the election.
    
    d) There was no evidence upon which a reasonable attorney would rely that the election was “stolen” or that the Democratic Party planned to “systematically flout existing election laws for partisan advantage.”

56. By including these false and misleading statements as a basis for the alternative legal strategies proposed in the six-page memo, respondent committed an act involving moral turpitude, dishonesty, and corruption in willful violation of Business and Professions Code section 6106.
    
57. A violation of section 6106 may result from intentional conduct or grossly negligent
    conduct. Respondent is charged with committing intentional misrepresentation. However, should the evidence at trial demonstrate that respondent committed misrepresentation as a result of gross negligence, respondent must still be found culpable of violating section 6106 because misrepresentation through gross negligence is a lesser included offense of intentional misrepresentation.
    
    COUNT SEVEN
    Case No. 21-O-11801
    Business and Professions Code section 6106
    [Moral Turpitude – Misrepresentation
    
58. The allegations in paragraphs 22 through 25 are incorporated here by reference.
    
59. On or about January 6, 2021, during his speech to a crowd of tens of thousands of people who attended a rally, promoted as a “Save America” march, held at the Ellipse of the National Mall in Washington, D.C., respondent stated that Dominion electronic voting machines had fraudulently manipulated the election results during the November 3, 2020, presidential election and during the January 5, 2021, run-off election in Georgia for its two Senate seats. Respondent stated that “[t]hey” put ballots “in a secret folder in the machines, sitting there waiting until they know how many they need,” and that after the polls closed, “unvoted ballots” were matched with “an unvoted voter” to fraudulently change the election totals in favor of Joe Biden and the Democratic candidates in the Georgia runoff election. Respondent further stated that analysis of the vote percentages showed that “they were unloading the ballots from that secret folder, matching them—matching them to the unvoted voter and voila we have enough votes to barely get over the finish line.”
    
60. Respondent knew that these statements were false and misleading in that, as respondent knew at the time:
    
    a) There was no evidence upon which a reasonable attorney would rely of fraud through electronic manipulation of Dominion voting tabulation machines. Respondent knew that on or about November 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.” Furthermore, no reliable evidence emerged after November 12, 2020, that there was any electronic manipulation of voting tabulation.
    
    b) No reasonable expert in statistical analysis of election results would conclude that the vote percentages related to the Dominion voting machines indicated that the machines had been used to fraudulently manipulate the election results.

61. By making these false and misleading statements in his speech to protestors on January 6, 2021, respondent committed an act involving moral turpitude, dishonesty, and corruption in willful violation of Business and Professions Code section 6106.
    
62. A violation of section 6106 may result from intentional conduct or grossly negligent conduct. Respondent is charged with committing intentional misrepresentation. However, should the evidence at trial demonstrate that respondent committed misrepresentation as a result of gross negligence, respondent must still be found culpable of violating section 6106 because misrepresentation through gross negligence is a lesser included offense of intentional misrepresentation.
    
    COUNT EIGHT
    Case No. 21-O-11801
    Business and Professions Code section 6106
    [Moral Turpitude – Misrepresentation]
    
63. The allegations in paragraphs 23 through 28 are incorporated here by reference.
    
64. On or about January 6, 2021, at approximately 2:25 p.m., while the Capitol was being stormed by a crowd of violent protestors, in an email to Jacob sent with the intent to pressure Pence to adjourn the Joint Session of Congress, respondent wrote: “You think you can’t adjourn the session because the [Electoral Count Act] says no adjournment, while the compelling evidence that the election was stolen continues to build and is already overwhelming? 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 American people can see for themselves what happened.”

65. Respondent knew that his statement that there was “compelling” and “overwhelming” evidence that the election was “stolen” was false and misleading, in that, as respondent knew at the time, there was no evidence upon which a reasonable attorney would rely that the election was “stolen” by the Democratic Party or any other actors. In fact, respondent had been informed by numerous credible sources, including the Attorney General of the United States, and knew that numerous courts had held, that there was no evidence of widespread election fraud or illegality that could have affected the outcome of the election.
    
66. By stating to Jacob, with the intent of pressuring Pence to adjourn the Joint Session of Congress, that there was “compelling” and “overwhelming” evidence that the election was “stolen,” when respondent knew the statement was false and misleading, respondent committed an act involving moral turpitude, dishonesty, and corruption in willful violation of Business and Professions Code section 6106.
    
67. A violation of section 6106 may result from intentional conduct or grossly negligent conduct. Respondent is charged with committing intentional misrepresentation. However, should the evidence at trial demonstrate that respondent committed misrepresentation as a result of gross negligence, respondent must still be found culpable of violating section 6106 because misrepresentation through gross negligence is a lesser included offense of intentional misrepresentation.
    
    COUNT NINE Case No. 21-O-11801 Business and Professions Code section 6106 [Moral Turpitude – Misrepresentation]
    
68. On or about January 18, 2021, the American Mind, a publication of the Claremont Institute, published an article written by respondent regarding the November 3, 2020, presidential election entitled “Setting the Record Straight on the POTUS ‘Ask’.” In the article, respondent stated that illegal or fraudulent conduct had occurred during the election, including:
    
    a) “in Fulton County, Georgia, where suitcases of ballots were pulled from under thetable after election observers had been sent home for the night;”
    
    b) “in parts of Wayne County (Detroit), Michigan, where there are more absentee votes cast than had been requested;” and
    
    c) “in Antrim County, Michigan, where votes were electronically flipped from Trump to Biden.”
    
69. Respondent knew that these statements were false and misleading in that, as respondent knew at the time:
    
    a) Fulton County election officials did not remove a suitcase of hidden ballots from under a table out of view of election observers and fraudulently process the ballots. In fact, video evidence established that the ballots at issue were in a room filled with people including election monitors, until the boxes—not suitcases—containing the ballots were placed under a table in preparation for the poll watchers to leave for the evening. Those boxes were reopened and their contents retrieved and scanned before poll watchers left when the state official monitor intervened, instructing the workers that they should remain to tabulate the votes. Furthermore, based upon the claim of fraudulent conduct, the Georgia Secretary of State conducted an investigation and determined that the video evidence did not show secreting and counting of illegal ballots, and there was no evidence of improper activity.
    
    b) The State of Michigan mailed to every registered voter applications to vote by mail, not absentee ballots. That action did not violate the state’s prohibition on sending absentee ballots without a prior request. Furthermore, while Trump supporters made public claims that hundreds of thousands of absentee ballots were sent to voters without a prior request, the Michigan Senate Oversight Committee found that that “no evidence [was] presented to the Committee” supporting that claim, and it appeared that many who claimed to have received an unsolicited ballot actually received an absentee-ballot application, which is legal, under Michigan law. There was also no evidence that election workers in Wayne County ran the same ballots through a tabulator multiple times. Moreover, there was no evidence upon which a reasonable attorney would rely that illegal votes by absentee ballots in Michigan had affected the outcome of the election.
    
    c) There was no evidence upon which a reasonable attorney would rely that votes were “electronically flipped from Trump to Biden” in Antrim County, Michigan.
    
70. By making these statements, when respondent knew they were false and misleading, and with the intent to encourage the general public to question the legitimacy of the election results, respondent committed an act involving moral turpitude, dishonesty, and corruption in willful violation of Business and Professions Code section 6106.
    
71. A violation of section 6106 may result from intentional conduct or grossly negligent conduct. Respondent is charged with committing intentional misrepresentation. However, should the evidence at trial demonstrate that respondent committed misrepresentation as a result of gross negligence, respondent must still be found culpable of violating section 6106 because misrepresentation through gross negligence is a lesser included offense of intentional misrepresentation.
    
    COUNT TEN Case No. 21-O-11801 Business and Professions Code section 6106 [Moral Turpitude]

72. The allegations in paragraphs 8 through 31 above are incorporated by reference.
    
73. Between on or about December 23, 2020, and on or about January 6, 2021, respondent repeatedly proposed and sought to encourage that Pence exercise unilateral authority to disregard the electoral votes of certain states or delay the counting of electoral votes. In particular:
    
    a) In the December 23, 2020, two-page memo, respondent asserted that “the Constitution assigns th[e] power” to resolve disputes regarding electoral votes “to the Vice President as the ultimate arbiter” and that Pence therefore could and should take action to disregard the electoral votes of seven states that had voted for Biden but had purportedly submitted dual slates of electors “without asking for permission – either from a vote of the joint session or from the Court”;
    
    b) In the January 3, 2021, six-page memo, respondent asserted that Pence, as the “ultimate arbiter,” had legal authority to take various actions, including “determin[ing] on his own which [slate of electors] is valid” or adjourn[ing] the joint session of Congress,” and as a result could unilaterally count no electors for each of seven states that had purportedly submitted dual slates of electors, unilaterally send the election to the House of Representatives under the procedures established by the Twelfth Amendment, or unilaterally adjourn the Joint Session without counting the electoral votes in the hope that Republican legislatures in the seven state would later appoint or certify a slate of Trump electors;
    
    c) In an email to Jacob sent at approximately 6:09 pm on January 6, 2021, approximately one-half hour after Capitol Police had cleared and secured the Capital building of protestors and Congressional leaders had announced that they would proceed with counting the electoral votes, respondent stated that “adjourn[ing] to allow the state legislatures to continue their work” was the “most prudent course”; and
    
    d) In an email to Jacob sent at approximately 11:44 p.m. on January 6, 2021, shortly after the House and Senate resumed the Joint Session to count electoral votes, respondent stated, “I implore you to consider one more relatively minor violation [of the law] and adjourn for 10 days.”

74. Respondent knew that the courses of action he proposed to Pence were contrary to and unsupported by the historical record, contrary to and unsupported by established legal authority and precedent, including the Electoral Count Act and the Twelfth Amendment, and based on the false premise that the seven states at issue had transmitted alternate slates of electors. Respondent’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 that respondent proposed. Moreover, in the course of an email exchange with another individual in early October 2020, respondent himself had recognized that these courses of action were improper. In that earlier email exchange, respondent stated that he he did not agree that Pence, who serves as President of the Senate, could determine which votes to count on January 6, 2021, because “3 U.S.C. § 12 says merely that [the President of the Senate] is the presiding officer, and then it spells out specific procedures, presumptions, and default rules for which slates will be counted. Nowhere does it suggest that the President of the Senate gets to make the determination on his own. § 15 doesn’t, either.” In that earlier email exchange, respondent further stated that he did not agree that, in the event of a dispute between a state legislature and the state’s governor or popular vote regarding the appointment of electors, the legislature determines the appointment of electors, stating “I don’t think [Article II] entitles the Legislature to change the rules after the election and appoint a
75. different slate of electors in a manner different than what was in place on election day. And 3 U.S.C. § 15 gives dispositive weight to the slate of electors that was certified by the Governor in accord with 3 U.S.C. § 5.”

75. Respondent failed to state in either the two-page or six-page memo that the courses of action he proposed to Pence were contrary to and unsupported by the historical record, and that his legal theory was primarily based on law review articles and contrary to and unsupported by established legal authority and precedent.
76. In discussions with Pence and Jacob on January 4 and 5, 2021, respondent 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. Moreover, at approximately 12:14 p.m. on January 6, 2021, Jacob sent an email to respondent which stated, “I just don’t in the end believe that there is a single Justice on the United States Supreme Court, or a single judge on any of our Courts of Appeals, who is as ‘broad minded’ as you when it comes to the irrelevance of statutes enacted by the United States Congress, and followed without exception for more than 130 years.” The email closed by stating that Jacob “ha[d] run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition, and essentially entirely made up.” Nevertheless, in subsequent emails sent to Jacob on January 6, 2021, at approximately 6:09 pm and 11:44 pm, respondent continued to urge Pence to take unilateral action to adjourn the Joint Session and so delay the counting of electoral votes.

77. By proposing to Pence that he had the legal authority to and should act unilaterally to resolve purported disputes regarding electoral votes on January 6, 2021, or that he had the legal authority unilaterally to delay certification of the votes, respondent advanced a radical and incorrect theory of constitutional law and election law, 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, and on the false premise that the seven states at issue had transmitted alternate slates of electors, such that no reasonable attorney with expertise in constitutional law or election law would conclude that Pence was legally authorized to take the actions that respondent proposed. Respondent advanced this theory and proposed that Pence take these actions where the outcome of a presidential election was at stake, courts were unlikely to be in a position to intervene, and the intended result
    of the proposed actions, the reversal of the outcome of the 2020 presidential election, risked significant foreseeable harm. By advancing this theory and proposing that Pence take these actions under the circumstances set forth above, respondent committed acts of moral turpitude, dishonesty, and corruption in willful violation of Business and Professions Code section 6106.
    
78. A violation of section 6106 may result from intentional conduct or grossly negligent conduct. Respondent is charged with committing intentional acts of moral turpitude, dishonesty, or corruption. However, should the evidence at trial demonstrate that respondent committed the acts as a result of gross negligence, respondent must still be found culpable of violating section 6106 because acts of moral turpitude, dishonesty, or corruption through gross negligence are a lesser included offense of intentional acts of moral turpitude, dishonesty, or corruption.
    
    COUNT ELEVEN Case No. 21-O-11801 Business and Professions Code section 6106 [Moral Turpitude]

79. The allegations in paragraphs 8 through 31 above are incorporated here by reference.
    
80. On or about January 6, 2021, respondent spoke to a crowd of tens of thousands of people who attended a rally, promoted as a “Save America” march, at the Ellipse of the National Mall in Washington, D.C. During his speech, respondent stated to the crowd that fraud had occurred in the November 3, 2020, presidential election, including a claim that “dead people had voted” and that Dominion electronic voting machines had fraudulently manipulated the election results. Respondent made these statements with the intent to convince the listener that the outcome of the presidential election had been affected by fraud. Respondent further stated, “[A]ll we are demanding of Vice President Pence is this afternoon at 1:00 he let the legislators of the state look into this so we get to the bottom of it . . .” Respondent made these statements with the intent to encourage the crowd of protestors to doubt the results of the election and to believe that Pence had the legal authority to delay the counting of electoral votes.
    
81. By telling the crowd of protestors, from a position of authority as a professor and purported “preeminent constitutional scholar,” that fraud had occurred in the election, that dead people had voted, that electronic voting machines had been used to fraudulently alter the election results, that Pence had authority to delay the counting of votes, and that Pence did not deserve to be in office if he did not delay the counting of votes, respondent made false and misleading statements that contributed to provoking the crowd to assault and breach the Capitol in an effort to intimidate Pence and prevent the electoral count from proceeding, when such harm was foreseeable, and thereby committed an act of moral turpitude, dishonesty, and corruption in willful violation of Business and Professions Code section 6106.

82. A violation of section 6106 may result from intentional conduct or grossly negligent conduct. Respondent is charged with committing intentional acts of moral turpitude, dishonesty, or corruption. However, should the evidence at trial demonstrate that respondent committed the acts as a result of gross negligence, respondent must still be found culpable of violating section 6106 because acts of moral turpitude, dishonesty, or corruption through gross negligence are a lesser included offense of intentional acts of moral turpitude, dishonesty, or corruption.

Eastman was then notified that he could be involuntarily placed on inactive status, could be forced to pay the costs of the Bar’s investigation, and could be sanctioned.