Law Professors

Prove it up: Scholars criticize law prof’s speech about secret folders and say it was unsupported

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Eastman and Giuliani Jan. 6 rally

John Eastman (left) joins lawyer Rudy Giuliani at a Washington, D.C., rally on Jan. 6 in support of then-President Donald Trump. They spoke before the attack on the U.S. Capitol. AP Photo/Jacquelyn Martin.

Shortly before the Jan. 6 riot started at the U.S. Capitol, law professor John Eastman spoke at a Women for America First rally for then-President Donald Trump, enthusiastically sharing his theory that there was cheating in the November and January elections. According to Eastman, there were “secret folders” placed inside voting machines that were filled with ballots to be matched with registered voters who did not cast their ballots.

Following criticism from other faculty members and a few board of trustees members at Chapman University, where he was a tenured professor, including a Jan. 9 letter to the Los Angeles Times, Eastman announced his retirement in a Jan. 14 statement posted on the website of Claremont University’s the American Mind. Eastman, a former dean at the Chapman’s Fowler School of Law, had also represented Trump in a bid for U.S. Supreme Court election intervention.

His retirement does not surprise some academics. They say his Jan. 6 remarks lacked any sort of research, and making such claims with no support could be viewed as a lack of academic integrity.

This year, Eastman is also a visiting scholar at University of Colorado Boulder’s Bruce D. Benson Center for the Study of Western Civilization. He “remains rostered” and can continue to perform scholarship at the university, but he has been relieved from teaching duties and will not speak as a representative of the school, the university told the ABA Journal.

“One of the responsibilities of a professor is to be respectful,” says Frederick M. Hess, director of education policy studies at the American Enterprise Institute. He has written articles in support of the Trump administration’s Title IX regulations, and is concerned about what he sees as campus suppression of unpopular opinions from the right. But Hess considers Eastman’s circumstances different.

“Here we have a situation where a law professor is going to a public rally and making claims that are not just fanatical, but have been repeatedly found to be wholly unsupported in one court of law after another. That strikes me as a failure to uphold the responsibility that comes with an academic position,” Hess says.

Eastman, a constitutional law professor who had an endowed chair, was not available for comment as of press time. In his online statement, he wrote that some of his colleagues—a word he put in quotes—lacked the courtesy to talk to him before publishing their statements, which he described as false and defamatory.

“Had they bothered to discuss the matter with me, they could have learned that every statement I have made is backed up with documentary and/or expert evidence and solidly grounded in law,” wrote Eastman, who also has a PhD in government and is a founding director of the Claremont Institute’s Center for Constitutional Jurisprudence.

Eddie Perez, a voting systems and election administration technology expert with a nonpartisan nonprofit, says he knows of no evidence to support Eastman’s secret folders theory.

According to Perez, it would be very difficult to hide secret folders or blank ballots in voting machines without being detected. Many people would need to be involved in the scheme, including county government employees who configure voting equipment and volunteer poll workers from both parties, he explains. Also, once the ballots are tabulated on a voting machine, it would be difficult, if not impossible, to restart it without a record of closing and reopening the polls, he adds.

He also thinks it would be difficult to falsify thousands of voter signatures in poll books without being detected.

“As soon as you start to get into the weeds, these theories fall apart really quickly,” says Perez, the global director of technology development & open standards for the OSET Institute, which focuses on researching, developing and making election technology.

Besides an accusation that Eastman lied about secret folders, the Jan. 9 Los Angeles Times letter accused him of engaging in actions that helped incite a riot against the U.S. government.

Lawrence Rosenthal, a constitutional law professor at Chapman, says he did not sign the letter. In his view it contained “overheated rhetoric,” and some things it accused Eastman of doing went beyond the evidence. However he was “very troubled” by the claim of electoral fraud Eastman made on Jan. 6. Rosenthal sent his own letter to the university president, and for guidance, he looked to the American Association of University Professors’ 1915 Declaration of Principles, which he describes as a “foundational document” for the organization.

It states that academic teachers have a “peculiar obligation” to avoid hasty, unverified or exaggerated statements.

“Lawyers acting in a professorial capacity ought to be lawyerly. I don’t think John’s comments were lawyerly,” Rosenthal adds.

Off-campus conduct is an area of tension that is increasingly scrutinized due in part to social media and online communications, according to Nancy Conrad, a partner with White & Williams who represents colleges and universities in employment disputes, including tenure.

“In my view, this will likely lead to specific provisions in faculty handbooks that address this type of conduct,” says the Pennsylvania lawyer.

Also, academic integrity is a broad concept, according to Fitzgerald Bramwell, a Chicago lawyer who represents professors in employment matters. He adds that if a tenured professor is accused of lacking academic integrity, the process for “de-tenuring” is controlled by the university’s faculty handbook and may include a hearing before other tenured faculty.

Daniele C. Struppa, president of Chapman University, noted the faculty manual in his various statements about the Eastman situation. His first, released Jan. 8, claimed that Eastman’s actions were in direct opposition to the university’s values and beliefs. Another statement, dated Jan. 9, referenced communications Struppa received from students, parents, faculty, staff and alumni accusing him of “cowardice” for not deciding whether Eastman should be terminated.

The faculty manual is a contractually binding document, Struppa noted, with clear guidelines on how to hire, discipline and terminate faculty.

“I am not the emperor of Chapman University, nor I am the supreme leader of Chapman University,” he wrote.

A third and final statement on Jan. 13 announced Eastman’s retirement, effective immediately.

“Chapman and Dr. Eastman have agreed not to engage in legal actions of any kind, including any claim of defamation that may currently exist, as both parties move forward,” Struppa wrote.

In terms of faculty displeasure, this was not the first time Chapman professors publicly criticized Eastman’s actions. In addition to the Los Angeles Times letter, there is a Dec. 13 statement that claims Eastman’s U.S. Supreme Court brief seeking to overturn the November election in several states was filled with errors and falsehoods and is contrary to the university’s core values. Both criticisms are posted on this website.

Chapman faculty also called out Eastman for an August Newsweek essay he wrote. It falsely asserted that then-Sen. Kamala Harris, who was born in California, may not be eligible to serve in the White House because her parents were not U.S. citizens when she was born.

A few days after the essay posted, Newsweek editors issued an apology for the piece, which was also updated to note that Eastman was a candidate for California attorney general in the 2010 Republican primary, which was won by Steve Cooley. Cooley was defeated by Harris in the general election.

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