Attorney John Eastman again on Tuesday lost his bid for Fifth Amendment protection from testifying about memos he authored saying the vice president could reject electoral votes and declare Donald Trump the winner of the 2020 presidential election.

State Bar Court Judge Yvette D. Roland rejected defense arguments that requiring the conservative lawyer to testify violated his right against self-incrimination. She had previously refused to stay the case based on Eastman’s arguments that requiring him to testify while criminal cases were proceeding would violate his Fifth Amendment right.

Eastman, Trump, and 17 others were indicted Aug. 14 in Georgia on racketeering charges stemming from the plan to declare Trump as winner in the presidential election. He waived his arraignment Tuesday in the Georgia case, Eastman’s attorney Randall Miller told the court.

Miller argued that requiring Eastman to testify in the bar case seeking to revoke his law license puts him “in an impossible position.”

Eastman “has to elect whether to remain silent in this action as to certain issues, which perhaps would jeopardize his ability to put on a fulsome case in his defense. On the other hand, testifying fulsomely puts him at jeopardy in the ongoing Georgia proceedings,” Miller said.

But Eastman waived his self-incrimination privilege by testifying for more than eight hours in the case, Roland said. He also testified before the Jan. 6 congressional committee in December 2021, asserting the Fifth Amendment “over 145 times,” and testified before the Fulton County grand jury, also asserting Fifth Amendment rights.

Eastman “fully understood” the importance of the committee’s inquiries “as many questions that relate to various allegations that are set forth in the notice of disciplinary charges here,” the judge said.

The court did delay for two days proceedings to permit Eastman to be booked into Fulton County on the criminal indictment.

The defense hasn’t provided any alternative reasons why the court should stay or abate the matter, Roland said. That there is some overlap in the two proceedings “is not something the court has any control over. We’re going to continue,” she said.

Roland also rejected Eastman’s efforts to block evidence from state bar prosecutors relating to bar claims he’d conspired to create alternative slates of electors to those that certified the 2020 election.

No Appeal Yet

No interlocutory appeal of Roland’s rulings has yet been filed with the State Bar Review Department, the appellate level for attorneys charged in disciplinary cases. Whatever happens there can be appealed to the California Supreme Court, which is ultimately responsible for attorney discipline. California lawyers also are regulated by the state legislature through the Business and Professions Code.

Eastman on Tuesday returned to the stand in his trial on 11 counts of ethical and legal violations relating to his role post-election that culminated in the Jan. 6 raid on the US Capitol. Eastman, whose testimony is expected to continue Wednesday, began answering bar prosecutors’ questions about two memos he sent to presidential advisers about theories the vice president could assert to invalidate or delay the presidential vote-counting.

Eastman and prosecutors went over court rulings rejecting Trump campaign challenges over alleged disparities in Arizona, Nevada, Michigan, Wisconsin, Pennsylvania, and Georgia. Roland and Eastman sparred over the Electoral Count Act, which wasn’t challenged in court or ruled upon by the US Supreme Court when the conservative law professor wrote his six-page memo. He maintains the act is unconstitutional.

Testimony continues through Friday with additional trial days penciled in for Sept. 12-15. Among those scheduled to testify this week is accountant Joseph Fried. Fried conducted an “audit” about 2020 election “anomalies” but has no experience or training in such matters, bar prosecutors argued. Also scheduled to testify is former Michigan Supreme Court Justice Michael Gabelman.

The Office of Chief Trial Counsel represents the bar. Miller Law Associates represents Eastman.

The case is In Re Eastman, Cal. State Bar, No. SBC-23-O-30029, trial 9/5/23.