John Eastman Is Not a Victim of Cancel Culture

Trying to overthrow a democratic election is categorically different from holding an unpopular opinion.

John Eastman
Jacquelyn Martin / AP

About the author: Jeremy B. Rosen is a partner at Horvitz & Levy LLP. He is a member of the Federalist Society.

I am a lifelong conservative. For the past 20 years, I have been a leader in the Federalist Society. I was nominated by President Donald Trump three times to serve as a federal judge, though I never secured a hearing, because then-Senator Kamala Harris blocked my nomination. I did not vote for President Joe Biden in 2020, and I hope he is defeated in 2024 by a principled and ethical conservative Republican.

But I also believe that Biden won the 2020 election fairly. Those who are enabling Trump’s ongoing effort to challenge the legitimacy of the election—John Eastman chief among them—should be rejected by all conservatives who love their country. He and others like him pose a clear and present danger to the health of our republic.

Following the election, Eastman represented Trump in challenging the election results on the basis of unsupported claims of fraud, and urged Vice President Mike Pence to block the electoral-vote count in Congress. These actions crossed a serious line because they sought to overturn the will of the voters. Now he is complaining about supposedly being deplatformed by the Federalist Society. He has specifically called me out, writing, “Some of the more vicious attacks on me have come from Federalist Society leaders like Jeremy Rosen, with no rebuttal opportunity afforded to me.” An email I wrote in the aftermath of the events of January 6, criticizing Eastman, was reported in the press, but I was far from the only conservative to make such points. Thus, I am not sure why he is singling me out.

It gives me no joy to fight him on this. I have known Eastman for roughly 20 years and considered him a friend. We were connected on Facebook, we have many mutual friends, I contributed to his campaign years ago for California attorney general, and each year for about a decade, I invited him to participate in the annual Supreme Court roundup event sponsored by the Los Angeles Lawyers Chapter of the Federalist Society.

I also want to make clear that, although I have been a volunteer leader in the Federalist Society for more than 20 years, I do not speak for the organization. Speaking for myself, I believe that principled conservatives need to take a stand against those in the conservative movement who have shed actual conservative principles to peddle a false and dangerous narrative.

Many of Eastman’s critics on the left lack credibility, given their reprehensible silence during previous dangerous stunts by Democratic members of Congress who objected to counting the electoral votes legitimately won by George W. Bush in 2000 and 2004 and by Trump in 2016. That the Democrats who so irresponsibly attacked previous election results were fewer in number than the Republicans now doing the same does not minimize the dangerous precedent set by such antics. Principled conservatives who properly objected to the attempted assault on the rule of law in prior elections should do so again here.

The genius of our Constitution is in its separation of powers among the three branches of government and among the federal government, the states, and the people. Our system can survive only when all three branches of the federal government adhere to the rule of law and do not arrogate to themselves powers not granted to them by the Constitution. That is why judges need to apply originalist and textualist principles to ensure that they do not become unelected tyrants imposing on the nation their whims disguised as constitutional law. Likewise, presidents and members of Congress need to respect the will of the voters and not seek to retain power through extra-constitutional means.

In his January 6 speech to the mob that would ultimately storm the Capitol, Eastman claimed that many voting machines had a secret folder that included additional votes for Biden. According to Eastman, after all the votes were in, those secret votes were assigned to people who hadn’t voted, in order to push Biden over the top in multiple states. The Trump campaign pursued at least 50 unsuccessful legal challenges to various state Electoral College slates along similar lines. Many of those cases were decided by conservative judges, some of whom had been appointed by Trump himself. There is simply no evidence that the voting machines in multiple states, including those with Republican Secretaries of State, were altered to manufacture votes for Biden.

Eastman also prepared a six-page memo for Pence, arguing that Pence had broad powers to stop the Electoral College–vote counting in the Senate. Eastman asserted that the vice president had the authority under the Twelfth Amendment to determine on his own which Electoral College votes were valid and to count only those, thus giving the election to Trump. This theory does not hold up to basic scrutiny. Applying originalism to interpret the Twelfth Amendment, Derek Muller, a professor at the University of Iowa and a prominent conservative election lawyer, explains that the vice president lacks any authority other than to announce the votes that have already been counted by Congress. Indeed, in 2000, Eastman himself argued that Vice President Al Gore did not have power over the counting, because only both houses of Congress possess such authority. If Gore lacked the power to challenge the counting of Electoral College votes he disputed to deprive then-Governor Bush of the presidency, so too did Pence with regard to Trump.

Finally, Eastman seeks to tie his alleged deplatforming by the Federalist Society to the legitimate and real problems caused by the cancel-culture movement on the left. Recent events at Yale Law School and MIT, for example, show that there are some progressives who wish to silence anyone who thinks differently from them. As David Lat and others have noted, threats to deplatform people because of disagreement with their message harm free speech and public discourse. Conservatives also have engaged in attempts to cancel those with whom they disagree, and such efforts are just as wrong.

But what Eastman complains about is not cancel culture. Eastman actively sought to help Trump steal an election he did not win. Had they succeeded, the peaceful and orderly transfer of power that is the hallmark of any democracy would have been threatened for the first time in our nation’s history. Seeking to subvert and damage our democracy is not the same as speaking freely, and it does not warrant any platform. Once our nation’s leaders refuse to be bound by the rule of law, the entire underpinning of our liberal democracy is lost.

The 2020 election was bitterly fought. Many people, including myself, had real concerns about the Biden-Harris agenda. But the fact that one is ultimately unhappy with the winner of a national election does not justify overturning the will of the voters. Principled conservatives should accept the legitimacy of the election, actively oppose Biden’s many bad policy proposals, and work hard to ensure that a Republican wins the next election, fair and square.