The Terrors of “Justice,” In Re: J. Eastman

As I survey the current scene, I’m inclined to take the long view, which goes all the way back to Watergate.

One of the ignored subtexts of Watergate is that a part of the fury behind the drive to get Nixon is that Nixon had made clear after his 1972 landslide his determination to challenge directly the power of the permanent bureaucracy, and thereby the power base of the Democratic Party. Watergate was a blunder, easily exploited by Democrats and their media adjuncts to drive Nixon from office, as even Nixon himself later admitted. (“I gave them a sword. . .”)

But the Nixon saga led to a new phase in American politics, by which Democrats, in the form of their permanent government servants and media adjuncts, decided to criminalize political differences. Some of the Watergate prosecutions were legitimate matters of criminal behavior, but some were sheer partisan vindictiveness, seldom better explained that in Maurice Stans’s book The Terrors of Justice: The Untold Side of Watergate. Stans was not the last person to be prosecuted by the federal law enforcement bureaucracy in the FBI and DoJ for partisan reasons. The DoJ went after Reagan’s labor secretary Raymond Donovan on trumped up corruption charges in the 1980s, with Donovan asking after his acquittal at trial, “Where do I go to get my reputation back?”

Then the deep state tried to get Reagan on account of his blunders that led to the Iran-Contra fiasco, but that didn’t work. A number of technical violations were charged—Oliver North for accepting a free security fence as an illegal “gratuity,” and no charges ever brought in connection with the supposed offenses that started the whole scandal. The deep state hoped to get George W. Bush and/or Dick Cheney with the nonsense Valerie Plame “leak” investigation, “investigating” for months after the prosecutors knew that the leaker had been deep stater Richard Armitage, but finally issuing a technical indictment of Lewis Libby for a memory lapse in talking to the FBI. (And needless to say, President Bush was too much of a wimp to stop this travesty.) This is how the FBI-DoJ Political Prosecution Complex (DPPC for short) works: if they decide to target you, they will come up with something.

Notice, in passing, how quickly Democrats got rid of the independent counsel statute when it became evident in the cases of Mike Espy and Bill Clinton that it could be used against Democrats. It was meant only to be used against Republicans.

The playbook got its most complete workout with Trump, who was completely unacceptable to the establishment, and thus had to be destroyed with all of the tools carefully honed since Watergate.

Which brings us to the present moment, and the crusade being waged against my old graduate school classmate John Eastman. In giving legal advice to President Trump and Vice President Pence in the aftermath of the election, he can’t be charged with any plausible crime, so the mob is attempting an implausible one: that he was conspiring to overthrow our Constitution—essentially a coup. “A Trump lawyer wrote an instruction manual for a coup,” reads the breathless Washington Post headline, to give just one of the many many hyperbolic headlines. Beyond this, there is a crusade to have Eastman “investigated” by the California State Bar, which is clever lawyering, since the lawyers making the charge know there is no chance the California Bar would move to suspend or disbar Eastman (unless they completely cave to the mob, which I suppose is not impossible), but the general public doesn’t know this, so it is effective innuendo.

Now, you can read for yourself Eastman’s six-part legal memo to the Trump team that revolved around ambiguities and defects of both the 12th Amendment and the Electoral Count Act. It is a novel interpretation, no doubt, and one that needed a couple of key parts to fall into place that didn’t occur, which is one reason Vice President Pence was unpersuaded in the end. I doubt it ever could have worked, more for political than legal reasons.

But the most conspicuous thing about the reaction to Eastman’s argument is that the left isn’t bothering to refute it point-by-point, or take up the issues Eastman raises about the 12th Amendment and the Electoral Count Act (let alone election integrity itself) but instead is launching a pure ad hominem attack with all of the coup talk. This is beyond everyday leftist hypocrisy on at least two grounds.

First, how come whenever a leftist legal scholar comes up with a novel interpretation of the Constitution to achieve leftist ends it is never called an “attack on the Constitution”? Example: Erwin Chemerinsky, one of Eastman’s chief accusers, in 2016 called for the judiciary to declare the electoral college unconstitutional (because Trump had won it), because it supposedly conflicts with the equal protection clause of the 14th Amendment. Never mind the audacity of supposing that one clause of the Constitution can be employed selectively to render another part of the Constitution—a part in use continuously for 230 years—null and void; it is a certainty that not a single person in Congress who wrote and voted for the 14th Amendment in 1868 would ever have entertained such a novel interpretation. Why, it’s the kind of thing only an inventive mind like Eastman might think! The point is, the devotees of the “living Constitution” get a case of the vapors when someone comes up with a novel interpretation that doesn’t align with the leftist agenda, but never seem to notice when they do exactly the same thing (which is often—Chemerinsky also argues that Vice President Harris could rule the Senate filibuster unconstitutional on her own authority—why didn’t Eastman think of that! oh, wait. . .—even though the Constitution is explicit and clear that each chamber of Congress gets to make its own rules of procedure). Never forget: today’s liberals hold the Constitution in contempt and wish to gut it if they could—except when it comes in handy as a cudgel to beat on anyone associated with Donald Trump.

Second and more to the point: let us, for the purposes of discussion only, accept the premise that Eastman’s novel legal analysis was subversive of democracy. I’m so old I can recall leftist lawyers—such as those who belonged to the Communist front National Lawyers Guild back in the day—whose explicit goal was to overthrow the Constitution. How come no liberal “defender of the Constitution” ever brought demands for the disbarment of these seditious lawyers? (Except for Joe McCarthy perhaps, and therein lies a clue to the matter.) For that matter, the faculty of the University of California are supposed to take an oath to defend the Constitution, and yet Angela Davis, an avowed Communist (still) who expressly advocates overthrowing the government and Constitution of the United States, remains a celebrated figure—in fact, not long ago making a Time magazine list of the 100 most influential Americans.

I have a theory of the case that goes beyond mere self-serving leftist hypocrisy. One reason for the hysterical reaction to Eastman, and the silent aversion of gaze when you mention someone like Angela Davis or the late William Kunstler, is that liberals actually don’t take radicals like Davis seriously. Time magazine is just virtue-signaling when they celebrate her, but not even an addled Joe Biden is ever going to look to Angela Davis or William Kunstler or others like them for serious advice, legal or political. But the left does take Eastman seriously; they are actually scared of him, and even more afraid of arguing with him, because deep down they suspect they will lose the argument. (This is acknowledged in a subtle way in many of the news stories that include passages about Eastman being “a once respected” legal scholar. They can’t call him a hack, unlike some of Trump’s other questionable choices in legal aid.) So he must be destroyed, by any means necessary. And those means, as we know, are plentiful and organized these days.

From this and a lot of other observations piling up, I have a new theory of the intolerance of the left: the academic left in particular are deeply insecure people—often professionally insecure, despite the fortifications of tenure, but also intellectually insecure, which is why leftists mostly refuse to debate anyone any more. In some cases it may be that the nihilism at the heart of the modern leftist outlook bursts through in personally demoralizing ways, as it ought to. It is also the case that when you reduce everything to a question of power, and your will-to-power doesn’t have much effect off campus (until recently), you increasingly become intolerant, vindictive, and censorious to any dissent. And the demonization and intimidation the left uses is a feature, not a bug. Naturally the left calls this “justice.”

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