Justice for John Eastman

[Henry Greenberg]

June 13, 2024
My Testimony at the Eastman Disbarment Trial
By Joe Fried


About a year ago, I received a phone call from John Eastman, the prominent constitutional scholar.  He was facing disbarment proceedings for the advice he had given President Trump, had read my book (Debunked), and wanted me to testify on his behalf at the forthcoming California disbarment trial.  Of course, I was eager to testify because I believed (and still believe) that the six key swing state elections in 2020 were not certifiable.  The specific reasons are laid out in the book.

Originally, I was one of seven “experts” selected by Eastman and his attorney, Randy Miller.  As experts, we would be able to give our opinions regarding the integrity of the election.  However, well financed attorneys for the California State Bar Association (SBA) immediately objected — to every witness.  Most of the time, Judge Yvette Roland was eager to oblige the SBA.

In my case, Judge Roland ignored the fact that I was a veteran auditor and CPA, had written a comprehensive numbers-based book on the 2020 election, had written a book describing 23 ways we can improve our elections, and had published at least 25 articles on the subject.  The problem?  I “did not audit any of the state results for the 2020 election.”  Her statement was correct: no state or county offered to let me inspect and audit its election.  To my knowledge, however, no state or county has ever invited any outside CPA firm to perform such an audit.  The closest we came was in 2021, when the Cyber Ninja audit was forced upon the highly reluctant and totally uncooperative Maricopa County, in Arizona.

So I would not be an “expert,” but I would still be able to testify as a “fact witness.”  I could testify about relevant observations I made and testing I performed, but I would not be able to express a general opinion.  That did not bother me too much because the facts would speak for themselves.  Besides, as a dismissed “expert,” I was in fine company.

In the final analysis, Her Honor disqualified most of the defense experts, including defendant John Eastman (arguably the nation’s foremost expert on constitutional issues); Michael Gableman (a former Wisconsin Supreme Court justice and the special counsel who conducted a comprehensive review of the 2020 Wisconsin election); and Garland Favorito, who has performed extensive election research for more than a decade and has testified as an expert in other courtrooms.  We would be allowed to testify as fact witnesses.  The testimony of some other experts was completely barred.

As a result of “the purge,” one side (the prosecution) would be able to expound on the accuracy and fairness of the election, whereas the other side (the defense) would not be able to express disagreement.  For this and other reasons, the trial was a joke.

Although Judge Yvette Roland seems like a smart woman, and she may have a good grasp of the law, it is clear that she is a committed partisan.  That is evident because she has donated to Democrat campaigns while serving on the bench.  It is also clear because of her demeanor in the courtroom.

From the start, the judge showed great skepticism of every assertion made by Eastman and his attorney, Randy Miller.  Almost all of Miller’s objections were overruled, whereas the objections of the SBA attorneys were mostly sustained. At one point, Judge Roland had the audacity to berate former Wisconsin justice Michael Gableman.  He made the mistake of inquiring about the rules of evidence being used in the courtroom.  Roland became so angry that she called for a five-minute break and told the defense counsel to “have a conversation with Judge Gableman, maybe straighten out a few misunderstandings, or...we’ll leave it at that.”

When John Eastman referred to the vice president as “him,” Judge Roland corrected Eastman  by saying “or her.”  According to reporter Rachel Alexander, a trial observer tweeted that Roland seemed more like a prosecutor than a judge.

The president of Judicial Watch, Tom Fitton, took it a step farther in a posting on X: “Kangaroo court proceedings in California to disbar John Eastman, one of the nation’s leading constitutional lawyers, for daring to provide legal advice on the Biden election controversy.”

Fitton hit the nail on the head: across the country, attorneys are facing disbarment and even jail time, simply for agreeing with the assertions of their clients, or for aggressively exploring the legal options available to their clients.  That is unprecedented.

In the past, it was normal to hear a lawyer proclaim the innocence of his client.  “Ladies and gentlemen of the jury, my client did not kill his wife!”  Later, when the jury decided that the client had, indeed, killed his wife, the attorney did not face disbarment for lying to the court.  The lawyer who supported the views and legal options of her client was considered a good and dedicated defense attorney.  Not anymore.

But let’s get back to my testimony in the John Eastman trial.  In the final analysis, I did not testify at all — even as a fact witness.  That was extremely unfair to John Eastman, and to the standards of justice we used to cherish in America.

Late one afternoon in September, I was scheduled to testify and was ready to present many facts — not opinions.  I had developed those facts by applying the audit skills I had developed in a 40-year career as a CPA.  In some cases, the results were alarming.

In Pennsylvania, I tested the work of Rep. Frank Ryan and Verity Vote and could confirm that there were exactly 202,377 more ballots cast than identified voters when the state certified its election.  That is not opinion; it is something that can be calculated from publicly available information.  In the weeks following the election, the Pennsylvania voter deficit got smaller.  However, on February 1, 2021 — nearly 3 months after the election — there were still at least 90,000 more ballots cast than identified voters.  Thanks to Judge Roland, that information was never presented at trial.

In Georgia, I calculated the statistical odds of Democrat Fulton County, the largest county in the state, having a rejection rate only 1/7 of that of the state as a whole, and less than any other comparable county (comparable in terms of per capita income, demographics, or population).  It was less than 1 in a billion.  That is not opinion — it is a statistical fact.

I also tested a sample of the bizarre findings of VoterGA.  It can be proven that thousands of scanned ballot images had precisely the same timestamp, to the split-second.  That is quite a trick when it takes a full second to scan each ballot.  And in Michigan, it was not hard to calculate how many ballots were rejected for having bad signatures.  It was just one in 2,500.

When I was about to testify, in late September 2023, the judge changed her mind: I no longer qualified — even as a fact witness.

The prosecutors asked me how I went about writing Debunked, and I responded that information was disappearing from the internet, so I started by grabbing as much as I could before it was gone.  Then I reviewed the information and applied audit-type tests, using information from sources such as the Election Administration Voting Survey, Ballotpedia, secretary of state databases, and about two dozen county election administration websites.  In a detailed overview of my data sources and procedures, Eastman’s attorney listed 40 different information sources I used so that I could independently verify election information.

In the end, it was for nothing, and the judge would not let me testify.  Why?  Because I sounded more like an expert than a fact witness: “To testify about his analysis of this material and, to offer an opinion regarding it, falls within the role of an expert.”

Was that supposed to be a joke?  When a judge is hostile, the defendant cannot win.

[Don Dresden]

The Eastman Dilemma: Lawfare or Justice
by Paul Ingrassia Dec. 24, 2024 8:15 am



John Eastman, the Claremont Institute scholar and conservative firebrand who stood by President Trump’s side all throughout some of the darkest days in the aftermath of the 2020 presidential election when the republic was on the line, will have his story told for the first time on the silver screen come the new year.

The documentary, titled The Eastman Dilemma: Lawfare or Justice, is slated for a fitting January 6th, 2025, release date, the fourth anniversary of the January 6th demonstration (but will premiere at Mar-a-Lago in a special event two days earlier).

The film marks the culmination of a years-long ordeal that has seen Eastman, once universally revered as a foremost authority in constitutional construction and history, targeted by one of the most ruthless and sustained lawfare campaigns against any attorney in American history.

Eastman, alongside former US Assistant Attorney General Jeff Clark and Mayor Rudy Giuliani, were systematically maligned, censured, and even disbarred for simply arising to a timeless call of both client and their profession by providing legal representation.

Eastman’s story is harrowing – and forebodes much darker times to come if we do not provide a radical course correction to the current state of affairs.

That his representation of Donald Trump occurred at such a critical time in the nation’s history whereby most of the political world – unlike now – turned their backs to him was sufficient reason to make a scapegoat out of Eastman and a few select aforementioned peers.

The reason, of course, was self-evident: the system wanted to kowtow all future lawyers into submission – from not only never again representing Donald Trump.

But from creating a chilling effect profession-wide so that no future attorney would ever dare to think about representing any conservative cause or movement aligned with the former and now president-elect’s broader political mission whatever.

The Left capitalized on this tragic state of affairs – and made life hell for Eastman – by exploiting Donald Trump at his weakest moment, in the immediate days and weeks after the stolen November 2020 election, and particularly after January 6th, when the 45th President was ignominiously ousted from the Swamp, many writing him off for good.

While fate had something else in store for both Donald Trump and country, precipitating maybe the greatest political comeback in American history, that victory did not come without significant personal costs to the many who rested uncompromisingly on their conditions and faith during the wilderness years.

Eastman’s was a standout case – especially for someone of his notoriety. Despite stellar credentials, he was forcibly exiled from the profession.

Having graduated from one of the nation’s finest law schools (University of Chicago) and clerked for Supreme Court Justice Clarence Thomas, Eastman made a career of his passion for law and love for the country and history.

He started off by working at one of the country’s most prestigious law firms, Kirkland & Ellis, specializing in constitutional litigation, before transitioning to teaching law full-time.

As a professor, he enjoyed professorial stints at both Chapman University Fowler School of Law and the University of Colorado Boulder.

He also was the founding-director for the Claremont Institute’s Center for Constitutional Jurisprudence, a think-tank devoted to educating and championing an originalist and textualist interpretation of the Constitution, in conformance with its framers’ intended and historic purpose.

By any measure, Eastman climbed the highest peaks of the legal profession – and then some. Top law school; Supreme Court clerkship; partner at big law; adviser to the President of the United States.

But his career is made even more admirable by its trajectory: rather than coast as a partner raking in millions at a fancy firm, Eastman, following some of his great mentors – including Justice Thomas himself, found the path less taken of teaching more fulfilling and more noble.

And boy did Americans benefit from that decision. At a time in which so many Americans do not know their history, particularly of the Revolutionary era out of which our Constitution was carved, Eastman devoted his energies to championing and illuminating this great tradition for our generation.

This decision reveals the noble side of Eastman’s vocation: America’s Constitution, the lynchpin for freedom the world over, is at grave risk of dying – in part because of our own ignorance, in part because far too many otherwise capable men abandoned their civic duties to make the necessary sacrifices to keep it alive.

If not for men like Eastman, who put aside self-interested desires for the greater good, then the republic would not have withstood the test of time – and the torch of American freedom would have died out this generation.

To purchase tickets and learn more about the film, please visit eastmandilemma.com/maralago.

The last four years are a searing case study of what happens when the project of freedom is forsaken. Eastman was summoned to provide legal representation to his client: the President of the United States.

Part of what made Eastman’s legal advocacy so difficult – despite being vindicated in both the law and, as time would tell, history – was the fact that so few people, including the tribunals tasked with adjudicating these fundamental questions, are today familiar with the issues.

What initially got Eastman in trouble was confusion over a fairly straightforward constitutional issue: namely, whether the President has the ability to request that his Vice President return fraudulent or legally doubtful slates of electors to their respective states for further inquiries.

That was it. This was not, as the media unwisely framed, the President beseeching his number two to “overturn” a presidential election. Nor was this the crazed theory of a madman lawyer seeking to make a name for himself by discrediting the results of a democratic election.

Instead, this was a lawyer providing representation to his client, as is the client’s right – and the lawyer’s duty – under the Constitution. Presidents, like any private citizen, have a Sixth Amendment right to zealous advocacy.

Eastman, the lawyer and constitutional expert, had the right to offer his sound legal judgment on a hotly contested constitutional problem.

A significant portion of the country – including not just Republicans, but many Independents and Democrats as well – have long believed America’s elections fraudulent, particularly with the lack of universal Voter ID.

These controversies reached a hot boil in the lead-up and immediate aftermath of the November 2020 election, the most controversial presidential race in modern history, if not all time, as laws were changed with impunity under the pretext of an unprecedented global pandemic, creating confusion and ripe opportunities for widespread cheating.

In an electoral system like ours, where the outcome is decided by a few ten thousand votes in a deeply polarized nation distributed across three or four key swing states, the President’s duty to ensure that our laws be faithfully executed, with reassurances to the public’s confidence, becomes of chief importance.

This is naturally the case every election cycle. But was of paramount concern in 2020, a year of untold riots and norm-breaking rules changes to election law, which made the President’s constitutional prerogative of outsized import.

This was already apparent on the morning of January 6th, 2021, when hundreds of thousands of overwhelmingly peaceful demonstrators descended upon the Capitol to voice their outrage for how the 2020 race was carried out. By later that afternoon, when the mob became even more agitated and a small riot broke out, the need for reassurance – in a safe and orderly electoral process – reached maximum urgency.

In hindsight, knowing how mentally debilitated a condition Joe Biden was in, it only reinforces the public perception – including those led to riot on January 6th – that the entire election result was an illegitimate sham, being pulled off by subversive agencies and actors within government and the press to thwart Donald Trump and the public support he so readily and easily commands.

Four years later, in light of this most recent consequential and landslide election, it only further vindicates the widespread doubts about 2020 – doubts which persist, and will remain so as long as the ultimate verdict of January 6th remains in limbo.

It also vindicates the theories of lawyers, like John Eastman, who insisted at the time in standing firmly behind the Constitution and its textual mandate, despite the titanic public pressures working against it.

Professionally and personally, Eastman experienced difficulties far beyond what any lawyer, let alone an expert competently performing his job, should ever have to face.

Professionally, he was terminated from his university post, later to be disbarred by a vindictive and cowardly California Bar.

This caused familial hardships and strains on his personal relationships. The countless indignities rendered by the California Bar upon Eastman so clearly demonstrates that the profession has much to learn from the timeless example of John Adams who nevertheless provided legal counsel to those British soldiers who carried out the Boston massacre, a stark reminder of the mighty obligations imposed upon all lawyers in all times to remain living in a free society.

In being one of the few attorneys to meet those high duties – and perform a damn well job along the way – Eastman demonstrated not just his enviable knowledge of presidential powers and constitutional theory, but maybe even more crucially, was a profile in courage, for not just lawyers but all Americans, of meeting his civic and professional duty, when the rest of the world turned a blind eye.

Rather than be punished for his efforts, Eastman – as champion par excellence of that most hallowed political cause – should be celebrated for his service to country.

His unjust white martyrdom at the hands of an increasingly despotic state is reminiscent of Thomas More, Lord Chancellor of England under Henry VIII, who was beheaded – and, centuries later, beatified – for standing firmly behind his higher duties to God and the English Constitution, as the world turned a blind eye.

Of course, Eastman has not had to pay with his life (though there were moments where he was put at serious risk of danger with his driveway being spiked by nefarious actors) the similarities between him and More ought not to be taken lightly.

Ours — like More’s England under a despotic king — similarly is a time of creeping tyranny, where right has been overtaken by might – and the natural truths, including the ultimate divine ones, are oft overshadowed by the sinister forces of a counterfeit order – which presents a fake deity, fake constitution, and fake political regime.

Now, more than ever, is proper discernment necessary – to determine the light of truth from the many deceptions in our midst. In the legal profession, especially, rare is the lawyer like John Eastman, who not only can tell the truth from lies, but as importantly, has the capability to answer the call to service, with real world impact, consistent with that truth.

Increasingly, the gifts and acumen needed to be an effective force for productive good in the world seems to be at a low point, especially among lawyers.

The next Trump administration would be blessed to have not just one or two, but hundreds of diligent lawyers in the mold of John Eastman, Jeff Clark, Rudy Giuliani, and a handful of others, who stood by the President and remained loyal through trial and tribulation.

Eastman, as a shining example of loyalty and competence, is a reminder of just how far we have digressed from those expectations for our lawyers – and the work that is left undone, necessary to restore some semblance of fairness and justice to a profession that has forgotten that its chief purpose is ultimately to preserve constitutional government and the liberties of every single American citizen.

[Henry Greenberg]

In New Film, Former Trump Attorney Details Struggles of Conservative Lawyers
The documentary, “The Eastman Dilemma: Lawfare or Justice,” premieres on Jan. 4 at Trump’s Mar-a-Lago resort.


John Eastman (L), former attorney and adviser for former President Donald Trump, speaks with reporters along with his attorney, L. David Wolfe, outside the Fulton County Jail on Aug. 22, 2023, in a still from video. NTD/Screenshot via The Epoch Times


By Emel Akan
1/4/2025 Updated: 1/4/2025

WEST PALM BEACH—In a new documentary, constitutional scholar John Eastman argues that in recent years, the United States has seen the rise of a “two-tiered justice system” in which the legal system has unfairly targeted lawyers representing conservative clients.

In the new film “The Eastman Dilemma: Lawfare or Justice,” he argues that lawyers who defended President Donald Trump and other conservative figures after the 2020 election faced harsh penalties for questioning election integrity—penalties he believes would not be applied if those on the left made similar claims.

Eastman, a former law professor, gained national attention for advising Trump on constitutional challenges to election procedures in several key battleground states following the 2020 presidential election. He has faced both disbarment and criminal charges related to his role.

The documentary, which will premiere on Jan. 4 at Trump’s Mar-a-Lago resort, aims to shed light on the problems he and other lawyers have faced.

Alongside Eastman, the movie also features Alan Dershowitz, a retired Harvard Law professor, and Jeffrey Clark, a senior Justice Department official in the Trump administration.

“For the last three years, everybody that was involved in raising the serious challenge to illegality in the 2020 election has been targeted for lawfare, criminal prosecutions, and bar disbarment proceedings,” Eastman told The Epoch Times.

He posits that the goal of these efforts has been not only to get lawyers disbarred but also send a message so that no one will dare take on such challenges in the future.

“The purpose of the movie is to expose that lawfare, but also to put together a brief summary of the evidence of illegality that occurred in the 2020 election, so people can know that we weren’t making this stuff up,” Eastman said.

He calls these actions against him and other lawyers “unjustified and unprecedented.”

“I'd like Americans to understand that what we did was in defense of the Constitution,” Eastman said. “I want people to learn about it and to come away angry, so that it never happens again.”

In 2020, he was invited to join an election integrity working group organized at Trump’s request. The group was formed in anticipation of post-election litigation related to the presidential race. On Dec. 6, 2020, Eastman received a formal engagement letter for legal services defining the scope of the agreement.

Eastman is facing criminal charges in both Georgia and Arizona related to his alleged role in efforts to challenge the results of the 2020 presidential election.

Following 35 days of trial, a California state bar court judge found in March 2024 that “Eastman’s wrongdoing constitutes exceptionally serious ethical violations warranting severe professional discipline” and recommended his disbarment.

Judge Yvette Roland ruled that Eastman, who had held his California law license for more than 26 years, broke ethics rules by advancing Trump’s challenges to the integrity of the 2020 election.

“His lack of insight into the wrongfulness of his misconduct is deeply troubling,” she wrote.

Eastman has also been allegedly de-banked by Bank of America and USAA.

In an interview in April 2024, Eastman told The Epoch Times that both banks had decided to close his accounts and discontinue doing business with him, without offering an explanation. Eastman believed that these actions were connected to his role in advising Trump.

Bank of America spokesperson Bill Halldin denied the claims of alleged de-banking.

“Due to privacy rules, we don’t comment on client accounts. However, I can say that political views are not a factor in any account closing,” Halldin told The Epoch Times in an email on Jan.3.

USAA did not respond to the request for comment by the time of publication.

Eastman once clerked for Supreme Court Justice Clarence Thomas.

He is a former dean of Chapman University Law School and a visiting professor at the University of Colorado. He also had to sever ties with both institutions in January 2021.

“They both canceled me in the same week,” Eastman said. “I’ve been disinvited from conferences and removed from publications.”

Despite the challenges of the past three years, Eastman says he has never doubted that it was worth it. Though he still spends nearly all his time defending himself, he remains hopeful that 2025 will bring an end to his struggles.

“I very much look forward to having this stuff past me so I don’t have to devote nearly full time to defending myself.”

“The Eastman Dilemma: Lawfare or Justice” will be released on Jan. 6. Between 400 and 500 guests are expected to attend the film premiere event at Mar-a-Lago on Jan. 4.

[Martin Eisenstadt]

Biden Regime’s Lawfare: An Interview with John Eastman
by Antonio Graceffo Jan. 7, 2025 7:30 am


President Trump and John Eastman (Credit: White House)

The Biden administration not only used the Justice Department to target President Trump and other prominent Republicans or outspoken conservatives but also went after the attorneys who represented them.

“If we don’t put an end to this pernicious lawfare, we will destroy the rule of law and the adversarial system of justice—and that, of course, is their intent,” said John Eastman, an attorney and academic who serves as a senior fellow at the Claremont Institute, a conservative think tank.

Eastman’s career was derailed, and his life turned upside down, as a result of his efforts to persuade Mike Pence to refuse to certify the 2020 election results in January 2021.

The United States Democracy Center reported that John Eastman was disbarred following a bipartisan bar complaint signed by 25 prominent figures, including former federal and California state supreme court judges, Republican officials, leading law professors, and ethics advisors from the George W. Bush and Obama administrations.

The complaint accused Eastman of violating his professional responsibilities as an attorney by filing baseless claims, making false statements, and engaging in deceptive practices in his efforts to keep Donald Trump in power after the 2020 election.

This included his involvement in the Texas v. Pennsylvania lawsuit, his alleged role in inciting the crowd at Trump’s “Stop the Steal” rally, and his ‘legally unfounded plan’ to pressure then-Vice President Mike Pence to reject valid electoral votes, effectively disenfranchising millions of voters.

It seems unusual for an attorney to be vilified simply for participating in a lawsuit. Eastman believes the Justice Department’s harsh stance toward conservatives and their attorneys is a deliberate attempt to deter future legal challenges.

“They’ve explicitly said they want to make these lawyers so toxic that no one will take on these kinds of cases again,” Eastman remarked.

“You cannot have an adversarial system of justice when one side can’t find lawyers to represent them.”

Attorney Robert Previto, who has been practicing law in New York for nearly 30 years, echoed concerns about the politicization of government agencies and the courts under the Biden administration.

“Eastman and Giuliani are both correct in many of their observations about the weaponization of government agencies and the courts,” he stated.

Previto warned of the grave consequences of such actions, emphasizing, “We cannot survive as a republic, individual liberty cannot survive, if our courts and our government abandon their historical neutrality toward those not in power and instead set their dangerous sights on prosecuting political opponents.”

Mr. Eastman criticized what he described as a striking example of projection in politics, claiming that Democrats in 2024 accused Donald Trump of planning to weaponize the Department of Justice if re-elected, while they had done so themselves during the past four years.

“One of the greatest examples of what psychologists call projection,” he argued, “is the Democrats accusing Trump of wanting to weaponize the Department of Justice. And I’m sorry, that’s what’s been going on the last four years.”

He added that he had been “one of the prime victims of it, second only to President Trump.”

Eastman accused prosecutors of creatively misusing criminal statutes to target conduct that traditionally falls outside their scope.

He pointed to the Supreme Court’s decision in Fischer v. United States, which ruled that prosecutors had overreached in applying an obstruction statute—originally designed for addressing document tampering—to individuals involved in the January 6 Capitol riots.

In that case, the Court determined the law’s intended application was too narrow to encompass the broad use it had been given.

Eastman also criticized state-level prosecutors like Fani Willis in Georgia and Attorney General Kris Mayes in Arizona for allegedly stretching the boundaries of conspiracy and forgery statutes to criminalize conduct he believes does not warrant such charges.

“They’re creatively using criminal statutes to cover conduct that’s never been treated as covered by those statutes,” he contended, drawing parallels to the overreach struck down in the Fischer case.

The Fischer case serves as a key example in John Eastman’s argument about prosecutorial overreach in lawfare.

The Supreme Court ruled that obstruction statutes, initially intended for document tampering, could not be broadly applied to January 6 rioters without clear evidence of their actions affecting official records or proceedings.

Eastman points to this decision to illustrate his claim that prosecutors are stretching the boundaries of criminal laws to target conduct that does not traditionally fall under these statutes.

Attorney Robert Previto highlighted the dangers of what he described as “lawfare” by a sitting administration, warning of its potential to erode democratic principles.

He explained that totalitarianism, which he defined as “one-party rule or simply repression,” often begins by manipulating the scope of criminal statutes to target political opponents.

“This is done to stop them from speaking and acting—actions they are wholly entitled to—and to simultaneously chill the speech and actions of others who oppose the policies or even the party in power,” Previto said.

He cited the cases of Eastman, Giuliani, and Trump as examples of this tactic, stating that it starts “under the color of existing law” but ultimately stretches the application of criminal statutes to a breaking point.

“When this happens,” Previto warned, “the law loses its meaning—and its purpose—and becomes nothing less than a fulcrum for those in power to disempower the people.”

[Martin Eisenstadt]

This isn't exactly on point with the thread, but it clearly demonstrates why the Marxtards are so aggressively trying to silence John Eastman. He understands that "birthright citizenship" is a scam rejected by the courts and the Constitution, and he clearly and concisely explains why.

01.22.2025
Birthright Citizenship: Game On!
John C. Eastman

The 14th Amendment does not confer automatic citizenship.

Claremont Institute scholars, including me, Ed Erler, Tom West, John Marini, and Michael Anton, President Trump’s incoming Director of Policy Planning at the State Department, have been contending for years—decades, really—that the 14th Amendment’s Citizenship Clause does not provide automatic citizenship for everyone born on U.S. soil, no matter the circumstances. Other prominent scholars, such as the late University of Texas law Professor Lino Graglia, University of Pennsylvania Professor Rogers Smith, and Yale Law Professor Emeritus Peter Schuck, have come to the same conclusion based on their own extensive scholarly research. 

Claremont scholars have made the argument in books, law review articles, congressional testimony, and legal briefs. President Ronald Reagan’s Attorney General, Edwin Meese, even joined one of those briefs, in which we argued against treating enemy combatant Yaser Esam Hamdi as a citizen merely because he had been born in Baton Rouge, Louisiana, while his father was working in the U.S. on a temporary work visa. Perhaps as a result of our brief in that case, the late Justice Antonin Scalia referred to Hamdi as a “presumed citizen” in his dissenting opinion.

Our argument is straightforward. The text of the 14th Amendment contains two requirements for acquiring automatic citizenship by birth: one must be born in the United States and be subject to its jurisdiction. The proper understanding of the Citizenship Clause therefore turns on what the drafters of the amendment, and those who ratified it, meant by “subject to the jurisdiction thereof.” Was it merely a partial, temporary jurisdiction, such as applies to anyone (except for diplomats) who are subject to our laws while they are within our borders? Or does it instead apply only to those who are subject to a more complete jurisdiction, one which manifests itself as owing allegiance to the United States and not to any foreign power?

Think of it this way. Someone from Great Britain visiting the United States is subject to our laws while here, which is to say subject to our partial or territorial jurisdiction. He must drive on the right-hand side of the road rather than the left, for example. But he does not thereby owe allegiance to the United States; he is not subject to being drafted into our army; and he cannot be prosecuted for treason (as opposed to ordinary violations of law) if he takes up arms against the United States, for he has breached no oath of allegiance.

So which understanding of “subject to the jurisdiction” did the drafters of the 14th Amendment have in mind? 

Happily, we don’t need to speculate, as they were asked that very question. They unambiguously stated that it meant “complete” jurisdiction, such as existed under the law at the time, the Civil Rights Act of 1866, which excluded from citizenship those born on U.S. soil who were “subject to a foreign power.”

The Supreme Court confirmed that understanding (albeit in dicta) in the first case addressing the 14th Amendment, noting in The Slaughterhouse Cases in 1872 that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” It then confirmed that understanding in the 1884 case of Elk v. Wilkins, holding that the “subject to the jurisdiction” phrase required that one be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” John Elk, the Native American claimant in the case, did not meet that requirement because, as a mem­ber of an Indian tribe at his birth, he “owed imme­diate allegiance to” his tribe and not to the United States.

Thomas Cooley, the leading treatise writer of the era, also confirmed that “subject to the jurisdiction” of the United States “meant full and complete jurisdic­tion to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”  More fundamentally, this understanding of the Citizenship Clause is the only one compatible with the consent of the governed principle articulated in the Declaration of Independence. 

All of this matters a great deal because on the first day of his second term in office, President Trump issued an executive order, “Protecting the Meaning and Value of American Citizenship,” which adopted the view of the Citizenship Clause I and other Claremont scholars have espoused. It directs every department and agency of the U.S. government to accept our view henceforth as the correct interpretation of the Constitution’s Citizenship Clause. 

This may be the most legally controversial executive order issued by the president on day one. And because of that, it is already being challenged in court, as 22 states have filed a lawsuit trying to block its implementation a little more than 24 hours after it was signed.

In the coming days and weeks, just as with that lawsuit, there will be lots of pundits opining that the president had no authority to issue such an order because the Constitution mandates automatic citizenship for everyone born on U.S. soil, a mandate that cannot be changed with the stroke of a president’s pen. They will contend that the Supreme Court already settled the issue more than a century ago in the 1898 case of United States v. Wong Kim Ark. 

But even if Wong Kim Ark was correctly decided (as Ed Erler points out, it was not), honest scholars must acknowledge that Wong Kim Ark involved a child born to parents who were permanently domiciled in the United States, not those who were only here temporarily or illegally. Indeed, honest scholars will be forced to acknowledge that the Supreme Court has never held that the children of illegal immigrants, or even temporary lawful visitors, are constitutionally entitled to automatic citizenship merely by virtue of their birth in the United States. And they will be forced to acknowledge as true the claim in Trump’s executive order that “the Fourteenth Amendment has never been interpreted [in any formal, binding way] to extend citizenship universally to everyone born in the United States.”

Alas, when it comes to anything related to Trump, there are very few honest scholars. Instead of acknowledging the Supreme Court’s limited, actual holding in Wong Kim Ark, they will point to dicta in which the Court’s majority falsely claimed that the Citizenship Clause codified the old English common law rule known as jus soli—that anyone born on the king’s soil owed perpetual allegiance to the king.  They will overlook that our Declaration of Independence was an explicit and eloquent repudiation of jus soli, stating in its closing paragraph that “these United Colonies…are Absolved from all Allegiance to the British Crown.” They will overlook that Congress did not view Wong Kim Ark as mandating automatic citizenship for everyone born on U.S. soil when, a quarter century later, it extended citizenship to Native Americans pursuant to its power under the Naturalization Clause, an act that would have been superfluous if Wong Kim Ark had already settled the matter that everyone born in the U.S., including Native Americans, were automatically citizens. And they will overlook that when a 1920s guest worker program ended in the wake of the Great Depression and more than a million Mexican workers were repatriated to Mexico, the repatriation included their U.S.-born children. No one at the time claimed that the children were U.S. citizens.

Nevertheless, despite the original meaning of the Constitution’s text, its initial interpretation by the Supreme Court, and its compatibility with the social compact “consent of the governed” political theory of the Declaration, our government agencies have for more than a half-century, without any formal amendment, court decision, or official authoritative pronouncement, been acting as though birth alone is sufficient to confer citizenship. And many children of illegal immigrants or temporary visitors have organized their lives in reliance on those informal views. (President Trump’s executive order does not disturb those interests. It makes the order applicable only to children born on U.S. soil more than 30 days after the order’s effective date, to parents who were unlawfully present, or lawfully but only temporarily present, in the United States at the time of their birth.) 

As a result of this order and the inevitable legal challenges to it, the Supreme Court will now, for the first time, have the opportunity to acknowledge that the Claremont Institute’s long-standing view of the Citizenship Clause is the correct one. With the Court currently composed of more originalist justices than has been the case in more than a century, we anticipate with great optimism a careful and considered assessment of the clause and a restoration of the fundamental notion that ours is a country rooted in consent, not in the old feudal notion of jus soli that was so thoroughly rejected in our Declaration of Independence.

[Harrison J Bounel]

February 16, 2025
The Eastman Dilemma: John Eastman vs. the Left
By Ian Smith

John Eastman should be a household name among conservatives, along with anyone else who believes authoritarianism can exist not just in the past or in faraway parts of the world, but in modern “liberal democracies” as well.

For those unaware of him, John Eastman is a leading constitutional scholar, a former presidential advisor and clerk to Justice Clarence Thomas, and is perhaps the most persecuted man in the country apart from Donald Trump. Last month at Mar-a-Lago, the latter was actually treated to the premier of The Eastman Dilemma: Lawfare or Justice, a documentary in which the since-fired law professor describes his three-year-long legal battle over the rather rudimentary act of providing counsel to one’s client. In this case, advising the White House on how to deal, constitutionally, with the highly contestable 2020 election results.

The legal question for which his opinion was sought was indeed a novel one; that is, whether a President has the ability to request that his Vice President return fraudulent or legally doubtful slates of electoral votes to their respective states for further inquiries. Given the huge irregularities of the ‘COVID election’ in states like Wisconsin, Georgia, and Pennsylvania, the Democratic slates of electoral votes sent off for official counting on January 6th were viewed by many Republicans to be tainted. Asked what to do about such a unique problem, Eastman set out a list of options, one of them which entailed sending the tainted votes back, so the claims of unlawful electoral practices could be further investigated. For this, Eastman has been thrice indicted as a ‘co-conspirator to obstructing electoral proceedings’ in Arizona, Georgia, and Washington, D.C., debanked by Bank of America, and disbarred in his home state of California; legal troubles that have already cost him nearly a million dollars in legal fees.

For those among us who simply refused to believe this country has been careening towards banana republic-status these last four years, there is no better introduction to the stark reality of the Left’s 2020-2024 deployment of state lawfare against conservatives than Eastman’s film -- a highly engaging, very accessible, hour-long production from the Madison Media Fund. Following their year-long investigation into Eastman’s potential “violation of California law and ethics rules governing attorneys…” the State Bar of California found he displayed “moral turpitude” for his claims of illegality in the 2020 election; a decision later upheld by a California judge and Kamala Harris-donor. But as Eastman states in the film, the intention is not to reprimand him for any true wrongdoing, but to more generally create a chilling effect among conservative lawyers from taking on GOP-supported legal challenges in the future, so as to leave any political opposition to the Democratic party defenseless. To skeptics, yes, these are truly unprecedented times.



Keeping in mind that John Eastman is an eminently qualified legal scholar (and who happens to be, in my opinion, the leading expert on the unconstitutionality of Birthright Citizenship), the film sets up cringeworthy footage of news commentator hacks smugly muddying Eastman’s name for his supposed ‘crazy legal theories’ and lack of constitutional grounding. But the theatrical harangues from people like second-rate actress Rachel Maddow and others had more serious effects than simply making conservatives wince. As shown in the film, left-wing extremists harassed Eastman and his wife at their California home for over a year following the coverage. He received death threats, epithets spraypainted on his house, and even found metal spikes buried in his dirt driveway, apparently intended to blow out his tires (which they did).

Following Election Day in 2020, numerous Republican state legislators were alleging that, due to substantial claims that various states’ voting laws had not been followed (signature verifications on absentee ballots being ignored, etc.), the election had been illegally held, making any certification by Pence of their states’ votes improper. Being such a novel situation, how to approach it legally was an open question, one that required advice from expert counsel; someone like John Eastman.

The “Eastman Memo” that elite media talking-heads seemed to raise with more horrified tones than the John Yoo torture memo, is given fair hearing in the film, clearing the air of any false claims that Eastman supposedly advised Trump and Pence to ignore the Constitution and certify so-called “fake electors.” The memo painted several scenarios, the one which Eastman recommended being for Pence to simply delay the January 6 count until legislators in the impugned states could assess the impact of the illegality. If it was found that the impact was smaller than the Biden margin, then Pence should recertify Biden. But if greater, then Pence should certify the Trump electors. After all, as Eastman states in the film, either the phrase “Consent of the Governed” as found in the Declaration of Independence has meaning or it does not.

The claims of election irregularities from many Republican state legislators were, of course, varied, substantial and, in places, horrifying for a country with such a proud democratic history. There were reports, for instance, of dumped absentee ballots (Michigan), signature verification standards being ignored (Georgia, Pennsylvania), ballot-harvesting by private individuals in heavily blue areas (Wisconsin), stopping the practice of sending bipartisan teams to assist seniors voting in nursing homes (in Wisconsin, turnout rates in such homes jumped from 20-30 percent to 100 percent) and poll watchers being kept away from counting tables (Detroit). Most of these practices were in direct violation of state laws designed to ensure that elections are as free and honest as possible and most were approved by partisan county clerks, secretaries of state, and state courts in key battleground regions -- the margin of victory in Wisconsin was a mere 20,000 and in Georgia, just 12,000.

For raising these highly alarming claims, then mapping out a way we could maturely deal with them as a constitutional republic, John Eastman continues to be persecuted in a way that should give even the most partisan liberal serious pause -- the well-known liberal law professor Lawrence Lessig appears in the film and thoroughly condemns Eastman’s ongoing treatment. But that the elite media has induced among its followers such vitriol for the Trump administration, much of the Left is apparently perfectly fine with chilling future legal challenges against unlawful electoral practices, in effect creating a license for themselves to steal elections. Thankfully, Eastman shows himself to be a steeled fighter and patriot in the film and, along with support from fellow conservatives, will inspire others to show the same resolve, relegating the legal persecution of one’s political enemies to the past and unfree world once again.