State Bar: Eastman Already Waived Fifth Amendment Privilege, Georgia Charges Don’t Change That

BOULDER, CO - APRIL 29: John Eastman, the University of Colorado Boulders visiting scholar of conservative thought and policy, speaks about his plans to sue the university at a news conference outside of CU Boulder o... BOULDER, CO - APRIL 29: John Eastman, the University of Colorado Boulders visiting scholar of conservative thought and policy, speaks about his plans to sue the university at a news conference outside of CU Boulder on Thursday, April 29, 2021. CU relieved Eastman of his public duties after he spoke at President Donald Trump's rally preceding the Capitol insurrection on Jan. 6. (Photo by Andy Cross/MediaNews Group/The Denver Post via Getty Images) MORE LESS
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The California State Bar is arguing that recent criminal charges against John Eastman in Fulton County, Georgia should not prevent disbarment proceedings against the former Trump lawyer from restarting next week. 

The California Bar officials seeking sanctions against Eastman filed a supplemental court document on Tuesday pushing back on Eastman’s request to postpone his disbarment trial, saying the proceeding against the architect behind Trump’s efforts to overturn the 2020 election should continue despite the fact that Eastman was just indicted by the Fulton County District Attorney.

The Tuesday supplemental document is the second argument California Bar authorities have filed in response to Eastman’s request to postpone disbarment proceedings against him earlier this month. At the time he said he was concerned that he would soon be criminally charged by special counsel Jack Smith.

“[R]ecent developments in the investigation have renewed and intensified [Eastman’s] concerns that the federal government might bring charges against him,” defense attorneys Randall Miller and Zachary Mayer wrote in a court document filed on Aug. 4, after their client Eastman was identified by journalists as an unnamed co-conspirator in the Smith’s second Trump indictment.

Eastman’s legal team argued that if the Department of Justice filed charges then Eastman might decide to assert his Fifth Amendment rights — which would allow him to refuse testimony that might be used against him —  during his disbarment proceedings. But, the lawyers argue, Eastman would do so reluctantly as invoking the Fifth Amendment in the disbarment proceedings would muddy Eastman’s ability to defend his law license.

The California State Bar filed it’s first response to Eastman’s request to postpone disbarment proceedings against him on August 10, arguing that special counsel Jack Smith’s latest indictment of Donald Trump is not a good enough reason to delay the trial.

The bar pointed to recent interviews that Eastman gave — including one in which he reiterated and justified the legal arguments he made around Jan. 6 — and argued that Eastman’s “willingness to speak at length in public about his conduct, when he knows he faces possible criminal charges related to this conduct, indicates that he is not concerned about incriminating himself by speaking about these topics.”

“Needless to say, during these interviews, respondent never asserted the Fifth Amendment,” Duncan Carling, the attorney leading the disbarment effort, wrote.

This was all, of course, before Monday night when Eastman, Trump and 17 other Trump allies were charged in Georgia over their alleged 2020 election subversion efforts in the state. 

Now that the Trump coup lawyer has been charged by Fulton County District Attorney Fani Willis, the state bar is saying the trial should continue regardless because Eastman already waived his fifth amendment privilege when he started testifying in his disbarment case in June.

“Respondent has already testified regarding many of the issues in this case without asserting the Fifth Amendment,” the California State Bar wrote. “Because he elected to waive that right by answering questions, he has waived his Fifth Amendment rights regarding those topics and any testimony that might impeach the testimony he previously offered.”

“Once the privilege is waived, that waiver cannot be revoked,” the State Bar added. “For example, the waiver cannot be rescinded simply because a prosecutor subsequently begins an investigation, so long as the potentially incriminating nature of testimony was known at the time it was given.”

Carling added that if the judge overseeing the proceedings, Yvette Roland, did decide to side with Eastman and delay the trial, that she at least allow the state bar to continue presenting its evidence against Eastman. 

“Public protection strongly favors timely completion of the trial,” he wrote.

Read the new filing here:

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  1. Avatar for tpr tpr says:

    I hate to say it, but I find the Bar’s argument unconvincing (if I understand it right). A witness may invoke 5A for some questions and not others with no inconsistency – as Eastman already has done, without objection from the Bar – so it’s patently absurd to suppose that agreeing to answer one question waives the right to invoke 5A to other potential questions.

    I thought their argument the other day was better.


  2. Avatar for bkmn bkmn says:

    Eastman still believes in his theory, which is why he is still trying to sell it every time he gets in front of a camera. It looks like the only way he will finally realize he was wrong is to be disbarred.

    But being a Trumper, the disbarment might not be enough to get it through his head that he was wrong and still is wrong. He could get by for a long time on the right wing grifter circuit, next to Kobach.

  3. Seems to me, Eastman’s arguments are flying up his own ass. That he is being charged with crimes in GA only underscore his unfitness to serve as an officer of the court.

  4. Is that the smell of bacon frying, or has Eastman jumped out of the frying pan and into the fire?

    Damn. no matter how I try to pun or provide vivid imagery, the image of Eastman getting fried in court is just . . . . wonderful.

    His dilemma is YUGE. To take the 5th, or not. and if he takes it, will he drink it on the rocks?

    Mr. Eastman, a hint. Next time Trump tries to criminally conspire with you, just say no.

  5. “Your Honor, just because I tried to overturn an election, there’s no reason I shouldn’t still be an officer of the court”.

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