MacIver Institute Supports Eastman: A Reader’s Guide to Its Amicus Brief
May a state bar decide that a lawyer committed a federal crime against a federal proceeding, even though no federal court has convicted him? That is the question the MacIver Institute asks the Supreme Court to consider in John C. Eastman’s case.
Submitted on October 9, 2026, the brief supports Eastman’s petition for review of his California disbarment. Its argument concerns the division of authority between the states and the federal government. MacIver contends that California crossed that line when it found that Eastman violated the federal conspiracy statute through his efforts concerning Congress’s count of the electoral votes.
The institute relies principally on In re Loney, an 1890 Supreme Court decision involving alleged perjury in a contested congressional election. It asks the Court to apply that decision beyond Eastman’s federal court filings to the federal-crime finding underlying Count One of his disciplinary case. Read the introduction and summary (pp. 1–6).
This guide follows MacIver’s arguments. It does not report a Supreme Court decision granting review or resolving the case. For the petition itself, see our earlier reader’s guide.
Who submitted the brief?
The John K. MacIver Institute for Public Policy describes itself as a nonpartisan, nonprofit think tank devoted to individual liberty and limited government. It explains that its commitment to federalism ordinarily leads it to oppose federal overreach, but that the constitutional division of power also limits the states. Skylar R. Croy serves as counsel of record.
MacIver supports review of all three questions in Eastman’s petition. Its particular request is to broaden the third question: does Loney prevent a state from independently finding that a lawyer committed a federal crime against a federal tribunal? The brief treats this as a question of subject-matter jurisdiction—the tribunal’s authority to decide the dispute—and argues that the Supreme Court may reformulate a question presented to address it. Read MacIver’s interests (pp. 1–2) and its proposed question (pp. 4–5).
1. What does Loney reserve to the federal government?
Loney arose after a witness gave a deposition before a Virginia notary in a dispute over a congressional seat. Virginia charged him with perjury under state law. The deposition, however, was taken under federal law to inform the House of Representatives as it exercised its constitutional authority to judge its members’ elections.
As MacIver explains the decision, the Supreme Court held that Virginia lacked jurisdiction. The witness was accountable to the United States for the truth of testimony given for that federal proceeding. The location of the deposition and the participation of a state notary did not turn the alleged wrong into an offense Virginia could prosecute.
The brief emphasizes the reason for that rule: participants in federal proceedings must not face state prosecutions prompted by disappointed litigants or local prejudice. Otherwise, state governments could obstruct proceedings entrusted to the national government. MacIver argues that the same structural concern applies when a state acts through professional discipline. Read the account of Loney (pp. 6–8).
This is not an argument that conduct can never violate both federal and state law. The brief acknowledges that counterfeiting and passing counterfeit money may harm interests belonging to both governments. A state has an independent interest in protecting a local merchant who receives a forged coin. MacIver distinguishes that situation from corrupting a federal tribunal’s own proceedings, where it contends the immediate injury belongs to the United States.
How MacIver applies Loney beyond perjury
The brief also maintains that Loney is not confined to perjury. It discusses later decisions concerning false statements before federal officials, testimony in federal litigation, and attempted bribery of a federal grand-jury witness. MacIver reads those decisions as applying a common rule: the state cannot police the integrity of a federal proceeding merely because the alleged misconduct occurred within its borders. Read the distinction and later cases (pp. 8–10).
MacIver finds additional support in 18 U.S.C. § 3231, which gives federal district courts exclusive jurisdiction over offenses against federal law while preserving state jurisdiction under state law. The institute does not insist that Loney rests exclusively on constitutional federalism or exclusively on the statute’s predecessors. Under either reading, it argues, a state cannot decide in the first instance that someone committed a federal crime by impeding a federal tribunal. Read the jurisdictional statute discussion (pp. 10–11).
2. Why does MacIver treat the electoral count as a federal tribunal?
The second argument applies that principle to the joint session of Congress on January 6, 2021. MacIver contends that the session was both federal and adjudicative: it was a proceeding in which electoral votes were counted and objections could be resolved.
The electoral count’s constitutional and historical background
The brief begins with the Twelfth Amendment, which directs electors to transmit their certified votes to the President of the Senate and provides for opening the certificates and counting the votes in Congress’s presence. MacIver acknowledges disagreement over the respective powers of the Vice President and the two houses. Its argument is that either way, the count belongs to the federal government.
Historical examples include John Adams’s pause for possible objections in 1797, Thomas Jefferson’s treatment of Georgia’s votes in 1801, Congress’s resolution of disputed votes after the 1872 election, and the Electoral Commission of 1877. MacIver uses these episodes to show that counting electoral votes has included deciding contested questions, rather than simply announcing totals. Read the constitutional and historical discussion (pp. 11–13).
The Electoral Count Act of 1887 supplied the additional procedures governing the 2021 count. The brief describes written objections, separate debate and votes by the two houses, and rules for conflicting returns. It also cites decisions treating the joint session as an official proceeding, including the litigation in Fischer v. United States. MacIver draws an analogy to Loney: in each setting, part of the federal government sits in judgment of an election.
The brief recognizes the states’ substantial role in presidential elections, but argues that their authority does not extend to policing the federal count. It invokes Trump v. Anderson and that decision’s concern about inconsistent state determinations affecting a nationwide presidential election. MacIver argues that state-by-state adjudications of crimes against the electoral count would present a comparable problem. Read the procedures, cases, and federal-state distinction (pp. 13–16).
The institute does not argue that a state bar must ignore a federal conviction. It points to Segretti v. State Bar, where California disciplined a lawyer after he pleaded guilty in federal court, including to a conspiracy charge under the same statute invoked against Eastman. MacIver’s distinction is the order of proceedings: the federal court adjudicated guilt first. It argues that California improperly bypassed that step in Eastman’s case. Read the federal-conviction distinction (pp. 16–17).
3. How did the conspiracy finding affect Eastman’s discipline?
MacIver argues that California did more than refer to federal criminal law by analogy. It applied the elements of 18 U.S.C. § 371 and found that Eastman had conspired to impede the joint session through dishonest means. According to the brief, that finding supplied the only sustained legal predicate for Count One; the bar proceedings did not establish the alleged violations of the Twelfth Amendment or the Electoral Count Act.
The brief traces the conspiracy finding into other parts of the decision. It helped support the rejection of Eastman’s First Amendment defense on the ground that his speech was used in committing a crime. It also counted against him in aggravation, and the recommendation of disbarment rested on the evidence considered as a whole.
For MacIver, this makes the jurisdictional issue consequential even though the judgment addressed numerous allegations. Removing the conspiracy finding, it argues, would eliminate Count One’s foundation and require the speech, aggravation, and sanction analyses to be reconsidered. The brief does not contend that this step automatically disposes of every other disciplinary count. Read the application to the judgment (pp. 17–19).
Procedural protections and broader consequences
MacIver also objects to the procedural consequences of allowing states to make these findings under the heading of professional discipline. The brief contrasts California’s clear-and-convincing-evidence standard with the higher standard in a federal criminal prosecution, and notes the absence of a grand jury, trial jury, and Article III judge. It warns that different states could reach conflicting conclusions under different procedural rules.
The institute connects that concern to lawyers’ ability to advise on disputed federal questions. It describes competing scholarship about electoral-counting authority without asking the Court to choose a winner in that debate. Its point is that a state bar should not settle the dispute by declaring one side’s advocacy criminal. The brief further emphasizes that federal prosecutors never charged Eastman and that he received a presidential pardon in November 2025. It presents those circumstances as additional reasons for review, rather than as the foundation of its jurisdictional argument. Read the broader consequences (pp. 19–22).
What does MacIver ask the Court to do?
The conclusion asks the Supreme Court to grant the petition, reformulate its third question, and reaffirm federal authority over offenses aimed at federal proceedings. The brief’s application to Eastman calls for vacating the judgment and returning the case for reconsideration without the § 371 finding. Its proposed rule would preserve state discipline following federal adjudication while preventing a state from undertaking that adjudication itself. Read the proposed treatment of the judgment (pp. 18–19) and the conclusion (p. 23).
Read the original document
The complete brief on the Supreme Court’s website contains 30 PDF pages. Printed page 1 is PDF page 8. Source links use the PDF viewer’s page count.
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This guide follows the brief’s arguments and descriptions of the proceedings. Page references are to the brief’s printed pages; links open the corresponding PDF pages.
For the underlying petition, see our earlier reader’s guide.
A short glossary
Amici curiae: “Friends of the court”: nonparties who submit a brief to assist the Court.
Certiorari: Supreme Court review of a lower court’s decision.
Vacate: Set aside a judgment.
Federalism: The constitutional division of authority between federal and state governments.
Subject-matter jurisdiction: A tribunal’s authority to decide a particular kind of dispute.