The State Bar of California has petitioned the highest court in the state to uphold a recommendation to disbar former law professor John Eastman due to his involvement in efforts to overturn the 2020 presidential election results in support of President Donald Trump.

Bar attorneys filed a 34-page petition with the California Supreme Court on Monday, requesting a ruling on several issues regarding the review standard. The petition also urges the justices to concur that Eastman deserves disbarment for his legal actions favoring Trump.

“Eastman made numerous knowing misrepresentations—in written memoranda, in court filings, in media, and in person—wrongly claiming that the 2020 presidential election had been stolen through fraud and illegal activities,” states the petition. “After failing to convince the courts, election officials, and state legislatures, Eastman devised a theory suggesting that the Vice President, as president of the Senate, could reject or delay the count of the legally valid, state-certified electors from the seven swing states.”

In June, a three-judge panel in the Review Department of California’s State Bar Court — serving as an appellate body in the state’s extensive, multi-layered system for lawyer discipline — concurred with a March 2024 recommendation to disbar Eastman.

However, the intermediate court took an action that the bar’s disciplinary counsel opposed. In the latest decision, the appeals court cited “strict scrutiny” as the review framework for evaluating Eastman’s statements and legal efforts regarding Trump.

Under long-standing ideas of constitutional analysis, the way a court approaches an inquiry into government behavior is often determinative, if not dispositive. In the parlance of the U.S. Supreme Court, there are three major frameworks: rational basis review, intermediate scrutiny, and strict scrutiny. In general terms, rational basis review often yields a win for the government; strict scrutiny often yields a loss; while intermediate scrutiny is anyone’s guess.

In Eastman’s case, the bar’s counsel is part of the bar, which itself is part of the court system – all of which was created by the legislature. So, in basic terms, the counsel’s behavior is being coded as governmental action when analyzing the punishment of Eastman’s speech.

Here, the reviewing court determined “all of Eastman’s relevant statements were core political speech triggering strict scrutiny,” according to the state bar’s filing. The state bar, however, says this is the wrong way to look at what Eastman said and did.

“The United States Supreme Court, the Ninth Circuit, and the State Bar Court have all recognized that when lawyers speak in their professional capacity, including in particular when engaging in client advocacy that relates to a pending case, regulation of their statements may be subject to the more deferential intermediate scrutiny that balances the attorney’s speech rights against the state’s regulatory and public protection interests,” the filing argues. “Here, the statements at issue were made by Eastman, acting in his professional capacity while engaging in advocacy on behalf of a client, then-candidate Trump, including in relation to pending cases.”

Notably, the appellate court rejected First Amendment defenses mounted by Eastman – ultimately finding the attorney’s statements to be false, misleading and in service of unlawful activity.

But, the state bar says, getting the standard of review correct is still important because they want Eastman’s case to stand as “as future citable authority” and believe the “identification of strict scrutiny as the standard applicable” to Eastman’s pro-Trump efforts “stands in stark contrast to extensive jurisprudence to the contrary.”

The state bar is also asking the high court to clarify whether Eastman’s misconduct rose to the level of “significant harm in aggravation.”

Again, both the trial court and appellate court went the opposite way: declining to find that Eastman’s behavior caused harm beyond “the public, the courts, and the legal profession.” The disciplinary counsel, however, said Eastman caused additional harm to elections administrators by “sowing doubt” about the electoral process.

“Eastman’s repeated and intentional promulgation of statements he knew to be false and legal theories he knew to be baseless had tangible, devastating consequences for public confidence in the integrity of our democratic institutions, the orderly administration of justice, and the safety of those charged with carrying out the lawful certification of a presidential election,” the petition reads. “There is no doubt that Eastman’s misconduct caused immeasurable and far-reaching harm and disrepute to the profession, the public, and democracy itself, and significant aggravation should have been assigned for these harms.”

The Monday filing is discretionary. Upon the Review Department’s ruling, the case was automatically filed with the California Supreme Court – giving each party 60 days to file a petition.

Had neither party filed such a petition, the intermediate ruling would have been finalized. Eastman, for his part, asked the state supreme court for additional time to file and was granted a reprieve. He has until Sept. 29, to file his own petition.

Eastman was a key architect of Trump’s efforts to overturn the results of the 2020 election – infamously authoring two of many so-called “coup memos.” Those memos variously advised on potential scenarios under which Joe Biden’s electoral college victory could be set aside.

At heart, the state bar’s filing risks little in Eastman’s case – because the reviewing court still recommended disbarment – but seeks to claw back the ability to more harshly discipline attorneys in the future.

“Eastman’s actions constituted unprecedented misconduct of the most egregious nature and the harm he caused should be recognized and included in the disciplinary analysis to stand as specific and general deterrence for Eastman and other lawyers,” the petition concludes.