Ted Cruz and Mike Lee Support Eastman: A Reader’s Guide to Their Amicus Brief

Senators Ted Cruz and Mike Lee argue that the right to legal representation depends on lawyers being free to give advice that regulators may later reject. Their amicus brief supporting John C. Eastman asks the Supreme Court to protect both the lawyer’s freedom to advocate and the client’s ability to find independent counsel.

Dated October 14, 2026, the brief offers three reasons to grant review: professional status does not erase free-speech rights; the right to petition protects clients who need lawyers; and, in the senators’ view, California acknowledged strict scrutiny without actually applying it to Eastman’s disbarment. The brief recognizes malpractice actions and court sanctions as ways to address deficient representation while arguing that controversial or unsuccessful legal arguments do not establish professional unfitness. Read the summary (pp. 2–4).

This guide explains the senators’ submission and its account of the disciplinary proceedings. It does not report a Supreme Court decision on the petition or independently determine whether Eastman’s arguments were correct.

Who filed the brief?

The amici are U.S. Senators Ted Cruz of Texas and Mike Lee of Utah. They describe an interest in protecting their constituents’ First Amendment rights and the lawyers who advise them. Members of Congress, they explain, also depend on candid legal advice about contested questions. Both say they have faced bar complaints based on ideological disagreements. That is their characterization of those complaints, not an adjudication made in this brief. Read the senators’ statement of interest (p. 1).

Christopher Mills of Spero Law is counsel of record. Gene P. Hamilton and Reed D. Rubinstein of America First Legal Foundation also appear as counsel. The senators submit the brief as amici; they are not parties to Eastman’s disciplinary case. Read the signature page (p. 19).

1. Why protect disputed and unsuccessful legal arguments?

The senators begin with the proposition that lawyers retain First Amendment rights when acting for clients. Relying on Chiles v. Salazar and NIFLA v. Becerra, they distinguish the state’s authority to require professional qualifications from authority to control a professional’s viewpoint. They argue that content-based restrictions on lawyers’ noncommercial speech must satisfy strict scrutiny rather than receive a lower level of review simply because the speaker holds a license. Read the professional-speech argument (pp. 5–7).

Legal representation, the brief explains, can itself be political expression and association. The senators draw on decisions protecting civil-rights advocacy to argue that ethics rules cannot operate independently of the Constitution. A state’s stated interest in maintaining professional standards does not eliminate the need to justify a restriction on protected speech. Read the discussion of legal advocacy (pp. 5–6).

The next step is protection for arguments that lose. Legal doctrine changes because advocates ask courts to distinguish, extend, modify, or overturn existing law. The brief relies on commentary to the professional rules, discussed in Justice Stevens’s Talamini concurrence, explaining that an action is not necessarily frivolous even if counsel expects it to fail. The senators argue that requiring an accepted consensus before a lawyer can advance a position would frustrate the adversarial process. Read the argument about disputed legal positions (pp. 7–9).

They then challenge retrospective judgments about legal reasoning. Questions of text, history, structure, and precedent often admit reasonable disagreement, the brief says, and even binding precedent can be challenged through an argument for overruling it. The senators distinguish that process of interpretation from a simple choice between a true and false factual assertion. They contend that a state cannot punish a lawyer’s reasonable judgment merely because regulators later disagree. Read the discussion of retrospective disagreement (pp. 9–10).

The senators also argue that the threat operates before a final sanction. Drawing on Counterman v. Colorado and Button, they explain how fear of error, legal expense, and investigation can cause speakers to avoid protected expression. For lawyers, the potential loss of a livelihood makes that pressure especially serious. They cite statements by advocacy groups and complaints against government lawyers as evidence of what they describe as a campaign to deter politically disfavored representation. The alleged motives and merits of those complaints remain the senators’ claims. Read the chilling-effect argument (pp. 10–13).

This does not leave clients and courts without protection. The brief expressly recognizes professional malpractice law. As the senators describe it, liability ordinarily requires a breach of duty, injury, and a causal connection; showing that advice was wrong is not necessarily enough. They point to those requirements as a way to distinguish actionable professional failings from protected disagreement.

Courts also have Rule 11, fee provisions, and inherent authority to address frivolous litigation. Because these mechanisms can address particular harms with a narrower effect on advocacy, the senators urge that bar discipline be a last resort. Their argument concerns the limits on punishment, rather than a claim that every legal argument or every act of representation is immune from regulation. Read the malpractice and sanctions discussion (pp. 13–14).

2. How does attorney discipline affect the client’s right to petition?

The second argument approaches the same relationship from the client’s side. The Petition Clause protects people seeking redress from government, including through litigation. The senators argue that this protection would be weakened if willing counsel could not exercise independent judgment or present reasonable arguments outside prevailing views.

They rely on Velazquez for the connection between an independent judiciary and an independent bar. They also invoke Brotherhood of Railroad Trainmen, Borough of Duryea v. Guarnieri, and United Transportation Union to explain why regulation of legal practice must respect meaningful access to courts and other government forums. The brief recognizes the state’s authority to regulate practice, but argues that the client’s constitutional rights remain part of the inquiry. Read the Petition Clause argument (pp. 15–16).

The practical concern is the initial decision to take a case. If an attorney expects a controversial representation to expose his license to later attack, he may decline before any legal argument reaches a court. The senators contend that this deterrence burdens the client even if no disciplinary proceeding ever occurs. The constitutional interest, in their account, extends beyond protecting Eastman personally to preserving access to lawyers prepared to undertake unpopular but lawful advocacy. Read the discussion of deterrence before representation begins (p. 16).

3. Did California apply the constitutional standard it acknowledged?

The final argument applies those principles to Eastman. According to the brief, the Review Department acknowledged that his charged statements involved core political speech and said strict scrutiny was the governing standard. The senators argue that its opinion nevertheless failed to identify a compelling governmental interest and explain why disbarment was narrowly tailored to serve it.

They also stress that Eastman’s clients had not alleged malpractice or bad advice and that complaints came from outside advocacy groups. The brief uses this distinction to challenge California’s justification; the absence of a client complaint does not itself resolve the disciplinary allegations. Read the application to Eastman (pp. 16–17).

The senators identify two defects in the tribunal’s stated focus on false statements and the rules governing attorney conduct. First, they invoke United States v. Alvarez against a general assumption that false statements have no First Amendment protection. They draw on the plurality and separate opinions, rather than treating all false speech as categorically protected.

Second, they argue that an ethics rule cannot supply its own constitutional justification. Saying that speech violates a rule does not answer whether the rule may constitutionally be applied to that speech. They invoke the Supremacy Clause and the Court’s strict-scrutiny precedents to insist on an independent constitutional analysis. Read the criticism of California’s reasoning (p. 17).

The brief further objects to treating Eastman’s description of the proceedings as politically punitive as an aggravating factor. It argues that this reinforces concerns about neutrality and fails to answer the constitutional question. Its closing point is that accusations of conspiracy or unlawful purpose cannot substitute for the analysis required before punishing protected advocacy. These are the senators’ criticisms of the judgment, not findings made by the Supreme Court. Read the closing application (pp. 18–19).

What Cruz and Lee ask the Court to do

The conclusion asks the Supreme Court to grant certiorari. The senators seek review of the constitutional limits on discipline for attorney speech and advocacy, including the effect on clients’ access to independent counsel. The brief does not ask the Court to establish that Eastman’s election claims were factually correct. Read the conclusion (p. 19).

Read the original document

The complete brief on the Supreme Court’s website contains 25 PDF pages. Printed page 1 is PDF page 7. Source links use the PDF viewer’s page count.

This guide follows the arguments and descriptions of the proceedings in the brief. For the underlying petition, see our earlier reader’s guide.