Irony, Meet Patriotism: The Strangely Instructive Case of John Eastman

by Tom Zoellner

 

 

When Chapman University Law Professor John Eastman took the podium at the “Stop the Steal” rally on January 6, 2021, memorably decked out in a brown fedora, purple shirt, and camelhair overcoat, he told a series of falsehoods about voting machines with “secret folders” programmed to work against Donald Trump. Then came an ultimatum.

“All we are demanding of Vice President Pence is this afternoon at one o’clock, he let the legislatures 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,” he said, invoking apocalyptic language. “We no longer lived in a self-governing republic if we can’t get the answer to this question.”

And then, referring to Pence: "Anybody who is not willing to stand up and do it does not deserve to be in the office. It is that simple.”

A few minutes later, Donald Trump urged the crowd to march on the U.S. Capitol and “fight like hell.” And they soon would, many of them chanting calls to hang Mike Pence, the target of Eastman’s rhetoric.

Among all the troubling questions that came from January 6, a lower-order one emerged for the faculty at Chapman University. We’re typically a placid lot and we don’t have a tradition of rocking the boat. But we had to ask ourselves whether Eastman’s hotblooded speech and actions on January 6 crossed a line of acceptability that made him unfit to teach here. This was not a case of a crackpot professor spouting objectionable ideas in a classroom, which would be protected as long as they weren’t discriminatory. This was instead an event never before seen in American academia: apparently seditious activity by a professor at the highest levels of national power that credibly threatened to take the country into an autocracy.

But the question was more complicated than it might seem on the surface. We might not have liked his Trumpist politics and style, but he was working as a bar-certified attorney vigorously advocating for a client (who happened to be president of the United States). The cherished concept of “academic freedom” has been banged into our heads since the first day of graduate school. Professors are not supposed to be in the business of muzzling each other, even if the ongoing intellectual warfare over gender and race theory makes it seem that way.

 

Our problems with Eastman, formerly dean of the law school and something of a minor celebrity in right-wing legal circles, did not begin on January 6. He had already been laying the groundwork for an assault on democracy, having provided Trump with a memo based in nonsense law, alleging the vice president had the authority to reject a state’s electors and giving the Republican-controlled legislatures the authority to appoint their own, thus rigging the outcome. It was a roadmap for a coup. He had also been the author of an absurdist brief to the Supreme Court alleging nonexistent irregularities in four states, asking the court to void the results and disenfranchise millions of votes because his client Trump didn’t like the results.

 

Five months prior, he made headlines for another spectacle, one that first put him in Trump’s field of vision. He published an op-ed in Newsweek – later apologized for by the magazine – suggesting that Kamala Harris was ineligible to be the vice president because she had been born to immigrant parents in Oakland, California. It was a preposterous argument, a gross distortion of what the Article II clause of the Constitution says about a “natural born citizen” of the U.S. being allowed to run for national office. The distaste was strong enough for a group of faculty members to write a petition denouncing the op-ed as “poorly argued, inaccurate, and racist.” About two hundred, myself included, signed.

I was ambivalent about doing it, as I don’t like mob pile-ons. Professors can be shockingly prone to groupthink and vindictiveness; too quick to react before all the data is known. But the petition was careful to reaffirm Eastman’s right to speak his mind – even if what he said was moronic – and to refrain from asking for a sanction. The point was to put some daylight in between our university and his numbskullery.

Circulating petitions against John Eastman soon became a Chapman University ritual. We did it again after he used his university email and phone number on his bizarre Supreme Court brief and this time, we had the chair of the board of trustees on our side. “I’m willing to accept his resignation at any time,” said Wylie Aitken, an attorney himself.

The final petition came right after January 6, this one the most strongly worded, calling for the university to take unspecified “action” after his unconscionable speaking role. The Los Angeles Times published it as a letter to the editor. About a third of full-time faculty signed it. We didn’t know then about the coup memo: that revelation came later.

I felt bad for Chapman President Daniele Struppa, caught in a PR nightmare of international proportions, but bound up by employment law and the free speech values of the university. Here’s part of what he said in the statement right after the riot:

 

Eastman’s actions are in direct opposition to the values and beliefs of our institution. He

has now put Chapman in the position of being publicly disparaged for the actions of a

single faculty member, and for what many call my failure to punish and fire him. If it’s

determined laws were broken, we will take appropriate action; but based on what we

know now, we will abide by the policies in our Faculty Manual which clearly state what

actions are protected. I will not subject the university to further humiliation by taking

steps that may cause us to violate our own set of policies, and ultimately lead us to

further embarrassment.

 

The twisting in the wind didn’t last long. Eastman called our petition defamatory and complained it set up a hostile working environment. It also might have given him the face-saving excuse he needed. The university reached some kind of confidential settlement with him that included a pledge that neither party would sue the other. On January 9, 2021, he announced his retirement. His primary affiliation is now with the longtime right-wing hothouse of the Claremont Institute where he started his career. He lives in Santa Fe, New Mexico where on June 22, 2022, federal agents approached him outside of a restaurant and seized his cell phone.

 

The government’s interest in his communications didn’t stop there: the Congressional select committee investigating the riot sued to obtain 19,000 of his emails stored on Chapman’s servers. Federal Judge   David O. Carter rejected Eastman’s claim of attorney-client privilege, saying that it was “more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”

 

Was it right of us to try to muzzle another academic’s speech, however odious? Didn’t Eastman have a duty to advance his client’s interests, as well as a First Amendment right to complain about his election suspicions, even if they were wholly disingenuous? Some of us non-lawyers pointed to the Supreme Court case Brandenburg v. Ohio, in which the court ruled free speech rights end when words are “directed at inciting or producing imminent lawless action.” But did telling lies about rigged voting machines to a hyped-up MAGA crowd rise to that level? That was murky. So was the question about whether Eastman knew that the disorder stirred up by his horrible advice to Trump would also include a physical assault on Congress.

For me, the motivations and the reasoning came down to one of patriotism. This is not necessarily the most fashionable concept among liberal professors, trained to aim a critical gaze at the nation’s historic shortcomings. You will see very few of us wearing flag pins. We don’t make a big show of it. But it was a factor that for me proved stronger than the absolutist free speech case.

Eastman was attacking one of the most crucial things we do as a country: the peaceful transfer of power from one faction to another, in abidance to the will of the people. Take this away and American democracy means nothing. Now it is also true that tenured professors need to have the security to say just about anything and be free to advocate for issues that move their conscience. That’s the whole point of this near-bulletproof job protection unavailable almost anywhere else. This is our defense against ill-advised persecutions of unpopular thinkers. The borders of acceptable thought within universities must be wide and spacious. The debate over out-of-the-box ideas is crucial for social change and a search for truth.

But there are limits. And for me, the line is drawn at the active undermining of the Constitution and providing legal cover for a high-level conspiracy of a defeated demagogue to illegally seize power. That violence against police officers came adjacent to that lie, combined with the unique psychological horror of seeing the U.S. Capitol attacked for first time since 1814, raised the stakes further and cast further doubt on the absolutism of free speech protections. It should not be forgotten that Eastman’s Chapman University “constitutional scholar” credentials were being touted right up until the rally that turned into a deadly riot.

 

Whether John Eastman is guilty of a felony is for the court system to decide. As for his remaining at Chapman, it seemed clear his classroom credibility was finished, unless students are coming here to learn dangerous conspiracies and the production of fantasy legal theories, in which case he would be an ideal mentor.

 

Colleges sometimes like to think of themselves as places set apart from their surroundings –islands of higher thought, with their vaguely medieval customs and park-like quadrangles a respectable distance away from the grubbiness of the ordinary city. But colleges almost always take on the cultural characteristics of their surrounding geography. Such is it with Chapman University, which takes much of its outward personality from the Old Orange County: a dash of libertarian sentiment, suspicion of collective organizing, an emphasis on the entrepreneurial and the individual. Busts of Margaret Thatcher, Ayn Rand and Ronald Reagan are on prominent display, as is a chunk of the Berlin Wall – a trophy of anticommunism. The president who brought it out of sleepy regional status in the 1990s, economist Jim Doti, had studied under Milton Friedman at the University of Chicago; an alcove in the library is named for the apostle of the free market.

As an old-school liberal and registered Democrat, I don’t necessarily mind this visible Tory superstructure. Historical conservatism has intellectual heft and deserves study. The dialogue at American universities can be stultifying and airless. Data shows professors who identify as liberal or leftist outnumber their conservative colleagues by a factor of 5:1. Students who lean Republican are often afraid to express their real thoughts. Even despite the conspicuous conservativism of top-level Chapman officials – an identity that certainly wins over certain wealthy Orange County donors – the usually progressive cliches apply to faculty here. Nearly all of us voted for Biden. The students are generally apolitical, still feeling their way, except when it comes to causes related to racial and gender justice, in which there is broad and passionate agreement. Chapman is no right-wing training camp.

One lasting effect of the Eastman trauma was that the core of us who organized the faculty petitions went on to form an advocacy chapter of the American Association of University Professors. This organization has been around since 1915, with a mandate to protect the academic freedom of its members. So there’s a huge irony in this episode. We formed mainly because one of our colleagues was pushing those rights beyond mere unpopularity into a dark and seditious realm, and we sought a check on it.

I hope this moral dilemma never may be foisted again on any university. May John Eastman be a one-in-a-billion case.

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Tom Zoellner is a much-published journalist and author of six books, most recently The National Road: Dispatches from a Changing America. He won the National Book Critics Circle Award for Island on Fire: The Revolt That Ended Slavery in the British Empire. Since 2016 he has served as politics editor for the Los Angeles Review of Books. He is a professor of English at Chapman University in Orange, California.