The Oversight Project Supports Eastman

Can a state disbar a lawyer for advocacy in federal proceedings when the conduct also falls within a presidential pardon? The Oversight Project puts that question at the center of its amicus brief supporting John C. Eastman’s request for Supreme Court review of his California disbarment.

Submitted October 13, 2026, in Eastman v. State Bar of California, No. 26-336, the brief presents four arguments: federal authority and the effect of the pardon; the First Amendment standards applied to Eastman’s speech; fair notice of prohibited conduct; and the historical protection of lawyers who represent unpopular clients and advance contested claims. It asks the Court to set aside the judgment and order dismissal, or to return the case for consideration of the pardon. Read the summary (pp. 2–3).

Who submitted the brief?

The Oversight Project describes itself as a nonprofit devoted to government accountability through investigation, education, and legal advocacy. It says its in-house law firm, announced in September 2026, defends people facing politically motivated proceedings, including lawyers facing professional discipline. Jeffrey Bossert Clark, Sr., is counsel of record, joined by Joseph Schmitz and Anthony Charles Licata. See counsel (p. 24).

The organization argues that lawyers must be able to advise clients and present disputed constitutional positions in federal forums without state tribunals independently finding federal offenses or disregarding federal pardons. That institutional concern explains the brief’s emphasis on federal authority. Read the statement of interest (pp. 1–2).

1. Federal authority and the presidential pardon

The brief combines three precedents: In re Loney, concerning state punishment for testimony in a federal proceeding; Ex Parte Garland, concerning a pardoned lawyer’s ability to practice; and In re Ruffalo, describing disbarment as punishment imposed through proceedings of a quasi-criminal character. The Project contends that together they require dismissal.

Loney involved alleged perjury in a deposition for a disputed congressional election. Although a Virginia notary took the deposition, he acted under federal authority. The Supreme Court held that Virginia lacked jurisdiction. The Project argues that the same principle prevents California from disciplining Eastman for filings in federal courts and advocacy before the Vice President concerning the electoral count. Its proposed application extends beyond the particular testimony at issue in Loney. Read the federal-authority argument (pp. 4–6).

The brief says every disciplinary count arose from the same federal controversy, including Eastman’s public commentary. It stresses that federal courts possessed their own powers to sanction filings or refer misconduct but did not use them against him. Allowing each state to police this advocacy, the Project argues, would subject one national electoral process to conflicting disciplinary rules.

Count One supplies its second jurisdictional argument. According to the brief, California found the elements of a federal conspiracy under 18 U.S.C. § 371 by clear and convincing evidence. The Project invokes 18 U.S.C. § 3231, which gives federal district courts exclusive jurisdiction over federal offenses. It argues that California cannot avoid that restriction by imposing professional discipline. This is an argument about the disciplinary tribunal’s use of a federal offense, not a claim that California entered a federal criminal conviction. Read the discussion of the counts and jurisdiction (pp. 6–8).

The Project distinguishes Fitzgerald v. Green, which upheld state jurisdiction over unlawful voting for presidential electors at the state’s own polls. It treats the location and authority governing the conduct as consequential: federal proceedings and federal offenses present a different jurisdictional question. Read the distinction (p. 8).

The pardon argument follows. In Garland, a former Confederate official who had received a presidential pardon could continue practicing despite a federal loyalty oath he could not truthfully take. The Project reads that decision to forbid professional exclusion imposed because of a pardoned offense. It relies on Ruffalo to reject California’s characterization of discipline as something outside the ordinary criminal-or-civil distinction.

The brief argues that the 2025 pardon in Proclamation No. 10,989 covers the election-related advice and advocacy underlying Count One. It also says the federal-conspiracy finding influenced the rejection of Eastman’s speech defenses and the overall sanction. Although presidential pardons reach federal offenses, the Project maintains that this limitation supports its argument: California relied on precisely such an offense. Read the pardon argument (pp. 8–12).

2. Did California apply the required First Amendment standard?

The Project’s second argument concerns the difference between acknowledging a constitutional standard and actually applying it. It says the Review Department accepted strict scrutiny as the standard for Eastman’s core political speech, yet treated that standard as conditionally relevant and instead balanced speech against public protection under an objective reasonableness test.

Strict scrutiny requires a compelling governmental interest and a restriction narrowly tailored to that interest. The brief argues that the tribunal never supplied that analysis for particular statements. It also faults the tribunal for rejecting the subjective standard associated with New York Times v. Sullivan and declining to separate Eastman’s different acts when assessing intent. Read the critique of the tribunal’s analysis (pp. 13–15).

The brief invokes NAACP v. Button, NIFLA v. Becerra, and Chiles v. Salazar against treating professional status as a general reason to reduce speech protection. It uses Chiles specifically to criticize the tribunal’s reliance on Eastman’s alleged lack of intellectual rigor and failure to consult appropriate experts: professional consensus, it argues, cannot determine the permissible limits of advocacy.

The Project also distinguishes restrictions on speech that threatens material prejudice to pending proceedings. Its point is that the public-commentary counts charged moral turpitude rather than prejudice to an adjudication. In its view, the Supremacy Clause required California’s disciplinary tribunal to follow the Court’s speech precedents, rather than subordinate them to state ethics rules. Read the professional-speech and pending-proceeding distinctions (pp. 15–16).

3. Did the disciplinary rules give fair notice?

The third argument challenges California’s standards as applied in this proceeding. The brief focuses on the duty to support federal and state law and the prohibition on conduct involving moral turpitude, dishonesty, or corruption. It argues that these broad provisions did not give adequate notice that disputed constitutional advice could result in disbarment.

The brief also contends that the Electoral Count Act’s meaning was contested when Eastman gave his advice. It points to contemporary scholarship and Congress’s later specification that the presiding officer performs ministerial duties. Those developments support the Project’s fair-notice argument; they do not, by themselves, establish that Eastman’s interpretation was correct.

The Project further criticizes the treatment of good-faith legal error. According to its account, the tribunal recognized that defense but treated Eastman’s insistence on historical and scholarly support as a failure to raise it. The brief compares disciplinary outcomes in Texas, Utah, and Georgia to argue that disagreement among responsible lawyers cannot fairly become an ethical prohibition after the fact. It cites a Ruffalo concurrence for that last proposition. Read the discussion of contested law and good faith (pp. 18–19).

4. What does the history of independent advocacy show?

The final argument places Eastman’s case within a longer history of lawyers defending unpopular clients and pressing disputed legal positions. The brief discusses the disbarment of John Peter Zenger’s original lawyers, Andrew Hamilton’s subsequent defense of Zenger, and John Adams’s representation of British soldiers after the Boston Massacre. It treats those episodes as reasons to protect independent counsel from political retaliation. Read the colonial examples (pp. 19–21).

The Project connects that history to the right to petition government. It objects to withholding protection because Eastman spoke for a client rather than solely for himself. Finally, it presents Reconstruction amnesty and the Iran-Contra pardons as examples of clemency serving national reconciliation. It argues that professional discipline should not defeat that purpose when it punishes a pardoned federal offense. Read the electoral, petitioning, and clemency discussions (pp. 21–23).

What the Project asks the Court to do

The principal request is to grant review, vacate the California judgment, and direct dismissal. Alternatively, the Project asks the Court to grant review, vacate, and remand for consideration of the presidential pardon. It emphasizes that the Review Department’s reasoned decision preceded the pardon and that the California Supreme Court’s summary order did not mention it. Read the alternative request (pp. 12–13).

The brief also asks the Court to seek the Solicitor General’s views and a response from California. These are requests in a submitted amicus brief, not actions this guide reports the Court as having taken. Read the conclusion and accompanying requests (p. 23).

Read the original document

The complete brief on the Supreme Court’s website contains 32 PDF pages. Printed page 1 is PDF page 9. Source links use the PDF viewer’s page count.

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.