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Politico reported Friday that John Eastman, the disgraced ex-law professor who formulated many of former President Donald Trump’s efforts to overturn the 2020 election results, was also apparently in communication with Fox News host Mark Levin. The story gets even more interesting from there, revealing the shell game that right-wing media personalities engage in while doubling as political operatives.
A legal filing by Eastman’s attorneys reveals that, among the messages Eastman is still attempting to conceal from the House January 6 committee are 12 pieces of correspondence with an individual matching Levin’s description as “a radio talk show host, is also an attorney, former long-time President (and current board chairman) of a public interest law firm, and also a former fellow at The Claremont Institute.” Other details, including a sloppy attempt to redact an email address, also connect to Levin, who did not respond to Politico’s requests for comment.
Eastman’s contention, however, is that he was not communicating with Mark Levin the media personality, which would forfeit attorney-client privilege on those communications. Instead, he was speaking with Mark Levin the attorney, and formulating legal strategies regarding the election.
The “Dual Role”
In their legal filing, Eastman’s attorneys argue that he should not have to turn over certain communications with right-wing media figures, even as other communications with those same people have been submitted. This question turns on a body of case law involving lawyers who serve in a “dual role.”
This area of law normally involves people who both are attorneys and have personal business interests, in which case a court must determine in which capacity they were acting and whether those communications or actions in question retain the legal privileges of secrecy.
The brief acknowledges that Eastman could find no previous instance in law having to do with media figures who were also attorneys, but it argues to extend this doctrine accordingly.
“Many members of the modern ‘media’ have multiple roles,” the filing argues, contending that some of Eastman’s communications with Levin in fact “involved work product communications with attorneys who also wear media ‘hats.’”
Eastman’s Legal And Media “Hats” Clash
In the case of Eastman, however, his work as an attorney in conservative causes and his public media presence have been so closely intertwined as to demonstrate that any such ethical separations quite simply do not exist in the right-wing media and political ecosystem.
Most notably, Eastman first came to Trump’s attention via an appearance on Levin’s Fox show back in May 2019, in which Eastman argued that Trump had the power as president to fire people who were investigating him. “The notion that the president can’t determine the course of an investigation is the most basic violation of separation of powers,” Eastman argued — even including an investigation involving the president himself.
The New York Times reported last year that Trump had never met Eastman before watching this episode. “Within two months, Mr. Eastman was sitting in the Oval Office for an hourlong meeting,” the Times reported.
In addition, Eastman’s new filing notes that he has had different sets of communications with an “opinion editor at Newsweek,” who is also affiliated with different conservative legal organizations. That description matches Newsweek editor Josh Hammer, who published Eastman’s disastrous op-ed in 2020 asserting that then-vice presidential candidate Kamala Harris was not a U.S. citizen and thus ineligible to run for office, even though she was in fact born in California. In this instance, clearly, the Venn diagram of the conservative legal and media worlds was simply a perfect circle.
And while Eastman was advising Trump on his theories of reversing the election results, he also advanced those ideas on former Trump adviser Steve Bannon’s show.
Levin Pushes Far-Right Legal Theories
While apparently acting under the privileges of an attorney corresponding with Eastman on their efforts to overturn the election, Levin also used his media platform with Fox News to publicly advocate for the same pseudo-legalistic theories. For example, he and Fox News contributor Ken Starr advocated the weekend after the election for state legislatures to overturn their election results and instead appoint pro-Trump slates to the Electoral College.
During an appearance on the December 10, 2020, edition of Hannity, Levin also advocated for the bizarre lawsuit in which Texas Attorney General Ken Paxton asked the U.S. Supreme Court to overturn the election results in four swing states.
There have been powerful indicators of the full-bore radicalization of the Republican Party in the past year: the 100-plus extremist candidates it fielded this year, the apparent takeover of the party apparatus in Oregon, the appearance of Republican officials at white nationalist gatherings. All of those are mostly rough gauges or anecdotal evidence, however; it’s been difficult to get a clear picture of just how deeply the extremism has penetrated the party.
Using social media as a kind of proxy for their real-world outreach—a reasonable approach, since there are few politicians now who don’t use social media—the Institute for Research and Education on Human Rights decided to get a clearer picture of the reach of extremist influences in official halls of power by examining how many elected officials participate in extremist Facebook groups. What it found was deeply troubling: 875 legislators in all 50 states, constituting nearly 22% of all elected GOP lawmakers, identified as participating members of extremist Facebook groups.
“The ideas of the far right have moved pretty substantially into the mainstream,” Devin Burghart, IREHR’s executive director, told Dana Milbank of The Washington Post, “not only as the basis for acts of violence but as the basis for public policy.”
This is pointedly true when it comes to “replacement theory,” the white-nationalist conspiracist narrative claiming that a nefarious cabal of globalist elites is deliberately manipulating immigration to replace white people in Western society with nonwhites—a set of beliefs that fueled Saturday’s domestic-terrorist attack on the Black community in Buffalo.
“Replacement theory” proponents, Burghart said, come from a broad bandwidth of far-right movements, and have been spread widely over the past year since Fox News’ Tucker Carlson began championing the claims. It’s also been ardently promoted by mainstream Republicans, particularly members of Congress:
- Elise Stefanik of New York, the number three House Republican: She’s running ads accusing Democrats of “a permanent election insurrection” in the form of an immigration amnesty plan that would “overthrow our current electorate.”
- Scott Perry of Pennsylvania, chairman of the House Freedom Caucus: He has claimed “we’re replacing … native-born Americans to permanently transform the political landscape.”
- Matt Gaetz of Florida, a notorious Trumpist congressman: tweeted that Carlson “is CORRECT about Replacement Theory.”
- J.D. Vance, who won the GOP nomination for the U.S. Senate in Ohio: He claims that “Biden’s open border is killing Ohioans, with … more Democrat voters pouring into this country.”
- Ron Johnson, the GOP senator from Wisconsin: He claims that Democrats “want to remake the demographics of America to ensure ... that they stay in power forever.”
IREHR researchers defined “far-right” groups as those advocating for changes that would significantly undermine political, social, and/or economic equality along class, racial, gender, sexual orientation, national origin, immigration status, or religious lines. Groups fighting government mask and vaccination rules and other public health efforts to contain the spread of the coronavirus were also included, as were 23 anti-abortion groups. It identified 789 of them.
The study identified 875 state legislators serving in the 2021-2022 legislative period who had joined these extremist Facebook books, only three of whom were Democrats. The remaining Republicans who had joined these groups constituted 21.74 percent of all Republican lawmakers in the country, and 11.85 percent of all legislators.
The states with the highest percentage of extremist legislators were Alaska (35 percent), Arkansas (25.19 percent), Idaho (22.86 percent), Montana (22.67 percent), Washington (20.41 percent), Minnesota (19.4 percent), Maine (18.28 percent), and Missouri (18.27 percent). The state with the highest total numbers of these legislators was New Hampshire (62), followed by Pennsylvania (40), Minnesota (39), Missouri (36), Arizona (34), Montana (34), Maine (34), Georgia (32), Washington (30), and Maryland (27).
As the report explores in detail—particularly in its profiles of individual extremist legislators, such as Washington state’s Jim Walsh and New Hampshire’s Susan DeLemus—these lawmakers’ far-right politics naturally translate into extremist legislation. The report connects them with a surge in legislation seeking to limit access to the ballot, restrict the rights of LGBTQ people, to limit “critical race theory” and otherwise control what public school children can learn about America’s legacy of racism, as well as to severely restrict abortion rights in their states.
“All of that stuff has been incubated in these networks,’’ Burghart said. “That rhetoric in this context becomes public policy quite quickly and those ideas not only move from the margins to the mainstream but now they’ve been codified into law in some places."
In all, the report identifies some 963 anti-human-rights bills introduced in legislative bodies by these lawmakers.
The point is that there is an internal coherence to all the rightist causes, as well as enthusiasm that hasn’t been there in previous incarnations. And, because of this coherence, there is a more solid political bloc that can influence the “establishment” Republicans, or intimidate them. But, in any case, it is a bloc that cannot be ignored.
Nor are the report’s authors optimistic, considering that even this clearer view of the penetration of extremism within the ranks of elected officials is still very rough and likely misses a great deal of this kind of activity: “IREHR researchers,” it notes, “believe the findings almost certainly understate the breadth of the problem.”
Reprinted with permission from Daily Kos.