‘You Should Not Be Allowed to Run the Government You Tried to Overthrow’
Nathaniel Herz
Tue, February 21, 2023
LONG READ
PALMER, Alaska — Before Alaska’s 10 a.m. winter sunrise, in a mostly empty courtroom here in December, Republican state Rep. David Eastman went on trial accused of betraying his oath of office.
The charge: that Eastman, a hard-line conservative and fervent Donald Trump supporter, had violated a “disloyalty clause” embedded deep in the Alaska Constitution — and was thus ineligible to hold office in the state.
On Jan. 6, 2021, Eastman was in Washington, D.C., to rally for the defeated president trying to overturn the 2020 election. Eastman says he never went inside the U.S. Capitol, and he hasn’t been accused of any crimes connected to the riot that day. But he also has ties to the Oath Keepers, the far-right group whose leader was found guilty of seditious conspiracy for a violent plot to disrupt the transfer of power on Jan. 6: Eastman purchased a lifetime membership to the group nearly a decade ago.
Throughout the saga, Eastman has shown no remorse or regret. If anything, the civil suit launched against him has emboldened him.
The trial, he said in an interview, amounted to: “You went to a political event that was a no-no, and now we’re going to punish you. And that’s fundamentally not American.”
Another viewpoint, of course, is that Jan. 6 itself — an unprecedented attack on U.S. democracy — was not American. Indeed, the legal challenge to Eastman’s ability to serve was one of numerous efforts across the country to hold elected officials accountable for their conduct that day. And it represented one of the most rigorous tests to date of whether insurrectionists, or those affiliated with them, could be legally disqualified from holding public office.
“It’s so basic,” Vic Fischer, 98 and the sole surviving delegate to Alaska’s 1950s-era constitutional convention, said in an interview. “If somebody comes along and wants to destroy the constitutional structure of Alaska, they should not be elected to the Legislature.”
Eastman’s week-long trial turned into a bizarre spectacle at times, and a very Alaska one at that. Massive snowstorms delayed the start of the proceedings. Joe Miller, the tea party Republican who beat Sen. Lisa Murkowski in the 2010 GOP primary but then lost in the general election, was Eastman’s lawyer. Witnesses included Stewart Rhodes, the Oath Keepers chief who testified from jail; John Eastman, the Trump attorney who tried to orchestrate a way for the former president to hold on to power (and has no relation to David Eastman); and an ex-FBI employee who claimed that Mitch McConnell and Beto O’Rourke were agents of the Chinese Communist Party.
Those figures, along with a Superior Court judge, a local anti-Trump, ex-Republican politician and his attorney from an Anchorage civil rights firm were all there to help answer some fundamental questions: Had Eastman violated his pledge to the Alaska Constitution with his Oath Keepers membership? Did the U.S. Constitution’s free speech and association rights allow Americans to serve in elected government posts while simultaneously affiliating with groups that threaten the existence of the government itself?
Two days after the trial’s conclusion, Eastman won. The judge ruled that the First Amendment barred disqualification of a lawmaker simply for being a passive member of an insurrectionist group — though it would have been different had Eastman taken an active role in the Oath Keepers’ affairs.
That didn’t mean the quest to hold Eastman accountable was over just yet.
In addition to a possible appeal, the state Legislature has its own rules about who gets to be a member, and some Eastman critics hoped a bipartisan coalition would still act. Yet in the end, the politics were too difficult.
Eastman continues to serve in the Legislature, as something of a pariah but defiant as ever. And his presence is a glaring reminder that two years after Jan. 6, the insurrectionist forces unleashed by Trump and his allies have yet to be expunged from American politics.
A Firebrand Arrives
Eastman has been a bomb-thrower since he landed on the Alaska political scene.
Hailing from Sarah Palin’s hometown of Wasilla, Eastman was first elected to the state House of Representatives in 2016 — defeating a five-term GOP incumbent in a primary after attacking him as too eager to compromise conservative principles.
Almost immediately, Eastman earned a reputation for inflammatory statements. In his first year in office, he claimed, without evidence, that women from Alaska’s largely Indigenous rural villages were glad to become pregnant so they could take state-paid flights to Anchorage and Seattle for abortions.
He consistently voted against legislation that otherwise had the unanimous support of his colleagues — he’s been the lone “no” vote dozens of times — including on measures to promote racial equity. He opposed bills honoring Hmong veterans, Black History Month and the Black soldiers who helped build the Alaska Highway during World War II. He also became one of the leading advocates of toughening prison sentences by reversing a criminal justice reform bill that passed before he was elected.
Eastman, 41, is a graduate of the U.S. Military Academy at West Point and spent his career as a military police officer in Alaska and Afghanistan before being elected. He’s described his uncompromising principles as guided by the oaths he’s sworn to the state and U.S. constitutions. And he says his colleagues are often “peer pressured” into votes that are not in the best interests of their constituents.
“At West Point, we were taught, and taught others, that any officer who was willing to honor that oath to the point of losing their life in combat should certainly be willing to be fired for honoring that same oath," Eastman has written. “If you are willing to die for your country, you need to be willing to be fired for it as well.”
Eastman’s approach has cost him at the state Capitol. He’s feuded with some of his own GOP colleagues; in 2017, the House, then led by a mostly Democratic coalition, formally reprimanded him for his abortion-related comments; and a joint House-Senate committee voted 9-1 last year against a request by Eastman to intervene in the lawsuit challenging his qualifications to serve.
His antagonism toward the establishment and his loyalty to his principles have made him enormously popular among Alaska’s conservative activists. They’ve even earned him some begrudging respect from his most vehement critics.
“It really has disadvantaged him so much. If it was really all theater, he probably would have moderated his views,” said Ivan Hodes, a long-time Eastman critic who’s campaigned to have him removed from the Legislature. “It’s like The Big Lebowski: ‘Say what you want about the tenets of National Socialism, Dude — at least it’s an ethos.’”
On the Stand
As Trump’s term came to a close, Eastman flew to Washington, D.C. for the president’s “Stop the Steal” rally in January 2021.
Eastman says he was not near the Capitol during the subsequent riot, and no evidence has emerged that he was involved in trespassing or violence. But when his name later appeared on a leaked list of Oath Keepers members, some Eastman opponents began talking about Article XII, Section 4 of the Alaska Constitution — which bars from public office anyone who aids or belongs to a group that advocates the forcible overthrow of the U.S. government.
The line was added to the document at Alaska’s constitutional convention. Delegates said they understood the provision as an “anti-subversive” clause, amid the anti-Communist Red Scare, that Congress required as part of statehood-related legislation.
One of the Alaskans looking closely at the disloyalty clause was Hodes, who, like Eastman, graduated from West Point; he now works as a civilian employee at the Defense Department.
Hodes, who’s Jewish, had been particularly incensed by what he viewed as antisemitic signaling from Eastman. That included a 2021 social media post comparing President Joe Biden’s impatience with Covid vaccine skeptics to war-mongering by Adolf Hitler, along with a link to a website run by a woman labeled as a Holocaust denier by the Southern Poverty Law Center. (Asked at the time if he was a Holocaust denier, he said, “No, there’s nothing to deny. But I do support and defend free speech, because if we can’t talk about those atrocities, then it increases chance they’ll continue.”)
“Ethnic minorities, religious minorities can’t afford to not pay attention,” said Hodes, 40. “When I first moved to Anchorage, the doors of the synagogue were open all the time — you could just walk in. Now, they’re locked.”
Hodes soon started working with an Anchorage-based civil rights law firm, Northern Justice Project, to challenge Eastman’s eligibility to serve. They connected with Randall Kowalke, a retired businessman, to be the face of the lawsuit.
Kowalke had once served on the local borough council and had been a Republican for decades. But he left the party around the 2020 election because, he said, of its transformation into a group of “totalitarian fascists.”
“I still consider myself, on a national level, more conservative than liberal,” he said in an interview. “But not a fascist.”
The trial was supposed to start Dec. 12, but an historic series of snowstorms forced the parties into a short-lived Zoom hearing where Miller, Eastman’s lawyer, pleaded for a delay because of lagging internet service.
The next day, Eastman, Kowalke and their attorneys assembled at the Palmer courthouse.
The legal case against Eastman was thought to hinge on testimony from a pair of domestic extremism experts. Kowalke’s attorney used them to argue that the Oath Keepers advocate for the forcible overthrow of the U.S. government — and that Eastman’s ongoing membership would thus meet the Alaska Constitution’s requirement for disqualification.
The experts’ testimony, over Zoom, methodically examined the group’s organizational structure and its role in the Jan. 6 insurrection. It was noted that 33 Oath Keepers were ultimately charged, including those who joined military formations that entered the Capitol and searched for former House Speaker Nancy Pelosi.
One of the experts, George Washington University research fellow Jon Lewis, referenced statements made before the riot by Rhodes, the group’s leader, about a “massively bloody revolution.” He cited internal Oath Keepers messages, made public as part of members’ prosecution, that said the group wouldn’t get “through this without a civil war.” And he described how Oath Keepers members brought guns to a Virginia hotel in advance of Jan. 6, though they were not used at the riot.
Miller produced an array of defenses of the Oath Keepers: Only a small fraction of the group’s members were present on Jan. 6; the delayed election certification caused by the riot wasn’t the same as an “overthrow”; and the seditious conspiracy charges against the Oath Keepers members referenced the U.S statute against forcefully interfering with the execution of federal laws — not a separate section that applies to conspiracy to overthrow the government.
“They’re looking at some bad things that were said by a few people. And they’re trying to then basically pollute anybody that has any affiliation with the group,” Miller said in an interview at the courthouse. “They can say bad things all day long about what Stewart Rhodes said he was going to do. But all those things were contingency based. He never brought arms into the Capitol. There was no ‘bloody civil war.’”
Miller also took the defense deep into a rabbit hole of far-right conspiracy theories — exemplified by the first witness testifying in Eastman’s defense, former FBI agent John Guandolo. Guandolo is known for promoting anti-Muslim conspiracy theories and calling Islam “barbaric and evil”; he was also once sued for punching a sheriff at a conference during a scuffle.
Guandolo laid out the discredited argument that members of groups on the left like Antifa and Black Lives Matter — who he said he identified by their black backpacks and clothing — were involved in the Jan. 6 insurrection. Then, under cross-examination, he argued that Chinese Communist groups and agents — whose ranks, he said, include McConnell, O’Rourke, U.S. Interior Secretary Deb Haaland and former FBI Director James Comey — are a more urgent threat to the U.S. government.
Rhodes, the Oath Keepers leader, testified on Eastman’s behalf over a scratchy phone line from jail in Alexandria, Va. — breaking away at one point, he said, when a guard sent him back to his cell. Rhodes cited his group’s mission of defending the Constitution and said that members who entered the Capitol were “stupid” and went “off-mission.”
“It was not our mission and it exposed us to the persecution of our political enemies,” he said. “That’s why I’m here, in jail.”
John Eastman, the Trump attorney, was paid $500 an hour to be one of David Eastman’s expert witnesses, and he centered his testimony on the lawmaker’s First Amendment defense. Even if others in the Oath Keepers did incite “imminent lawless action,” which John Eastman didn’t concede, he argued that the U.S. Constitution’s freedom of association rights would still protect David Eastman’s membership as long as he didn't participate in the incitement himself.
David Eastman also took the stand in his own defense, calling the case against him just another form of “cancel culture.” He also expressed no remorse about his membership in the Oath Keepers, saying, “Any organization that will assist us in supporting and defending the Constitution is an asset to this country.”
In a 49-page decision issued two days after the end of the trial, Superior Court Judge Jack McKenna accepted many of Kowalke’s arguments, concluding that the Oath Keepers have, “through words and conduct, taken concrete action to attempt to overthrow by violence the United States government.”
But he still declined to disqualify Eastman, based on the First Amendment. McKenna argued Alaska can only infringe on a person’s association with a group if they have “a specific intent to further the illegal aims of that organization.”
Eastman, McKenna wrote, donated more than $1,000 to the Oath Keepers and bought its merchandise. But he received only “limited communications” from the group like membership-related emails; he wasn’t part of internal chats or meetings, didn’t meet with Oath Keepers on Jan. 6 and didn’t approach or enter the Capitol.
Kowalke could have appealed the decision to the Alaska Supreme Court, but ultimately decided against it. His attorney questioned McKenna’s interpretation of some of the pre-existing First Amendment case law, but concluded that the judge’s findings about Eastman’s intent would be too hard to overturn. Also, he noted a losing appeal might have made it harder to pursue similar cases in Alaska and throughout the country, and that wasn’t worth the risk.
Regardless, Eastman’s victory in court highlights the legal and constitutional obstacles that stand in the way of efforts to disqualify elected officials alleged to have violated their oaths of office on Jan. 6.
A Final Attempt
But the push for accountability for Eastman wasn’t over. There was still another branch of government to consider, and pro-democracy activists in Alaska soon began calling on the state House to bar Eastman from the new Legislature when it convened in January.
And Alaska’s unique politics made Eastman’s fate even more uncertain.
The midterm election had left the 40-member Alaska House almost perfectly split between Democrats and Republicans, with a few independents aligned on each side. As the Legislature convened last month, neither party had been able to form a majority, and Eastman’s continued presence had the chance to tip the balance — but not in the way you’d expect.
Eastman is such a firebrand that Republican leadership couldn’t count on him as a reliable vote. Indeed, some liberal legislators resisted the calls for Eastman’s exclusion, preferring to see him keep his seat than be replaced by a politician more aligned with the rest of the GOP caucus.
“All the principles I care about, from the right to choose, to public schools, to timely food stamp payments would be damaged by a reconfigured Wasilla seat,” state Rep. Andy Josephson, an Anchorage Democrat, said in an interview.
Still, activists hoped that other Democrats would entertain a vote to disqualify Eastman from office.
But kicking him out would also require GOP support in the narrowly divided chamber. Would Republicans seize the opportunity to oust Eastman in favor of a more pliant member, or because his support for an insurrectionist group that helped fuel the Jan. 6 riot was finally a step too far?
As the Legislature convened, Scott Kendall, a well-connected Alaska attorney and political figure, wrote an op-ed pushing lawmakers to act.
Kendall had been chief of staff to former Gov. Bill Walker, a Republican-turned-Independent, and he noted that members of the House actually had two options for pushing Eastman out: They could expel Eastman on a two-thirds vote after he was seated or simply vote to exclude him at the outset of the coming legislative session by a simple majority.
Regardless of the judge’s ruling on Alaska’s disloyalty clause, Kendall argued Eastman’s ouster was required because he violated Section 3 of the 14th Amendment to the U.S. Constitution. That’s a post-Civil War provision that disqualifies from office anyone who swore an oath to support the Constitution and then took part in or backed an insurrection.
A New Mexico judge used the “disqualification clause” last year to remove a county commissioner, Couy Griffin, from his position, after he was convicted of trespassing at the Capitol on Jan. 6. The Washington-based group Citizens for Responsibility and Ethics helped lead the lawsuit challenging Griffin’s qualifications, and it included Eastman in a recent report as an elected official who deserved scrutiny.
“You should not be allowed to run the government you tried to overthrow,” Debra Perlin, CREW’s policy director, said in an interview, referring to Eastman. The legislative branch, she added, has to do its own “self-preservation.”
Or maybe not.
Ultimately, the Legislature moved on. Republicans cobbled together a majority and though they didn’t want Eastman in their club — he is not a member of any party caucus, and he was stripped of one of his aides — they declined to exclude or expel him from office.
Voting to deny Eastman a seat in the House likely would have incited a backlash from conservative activists. GOP House members were quick to hang up the phone when reached to discuss Eastman’s continued service in their chamber.
“The one thing I have no comment on is David Eastman,” said Anchorage Republican Rep. Laddie Shaw.
Eastman, of course, could have neutralized some of the jeopardy he faced by renouncing his association with the Oath Keepers. But the challenge to his membership seemed to only solidify his resolve.
Not long after beating the legal challenge to his qualifications, Eastman was back in Washington, D.C., where he attended a vigil for defendants charged with crimes related to Jan. 6.
In a phone interview speaking outside the jail where the vigil was held, he vowed to champion those who have faced consequences for their conduct on that day.
“Every single one of my constituents, and every single Alaskan that was there on Jan. 6 that participated in a peaceful rally, that’s their right,” Eastman said. “And I will absolutely go to bat for them.”
PALMER, Alaska — Before Alaska’s 10 a.m. winter sunrise, in a mostly empty courtroom here in December, Republican state Rep. David Eastman went on trial accused of betraying his oath of office.
The charge: that Eastman, a hard-line conservative and fervent Donald Trump supporter, had violated a “disloyalty clause” embedded deep in the Alaska Constitution — and was thus ineligible to hold office in the state.
On Jan. 6, 2021, Eastman was in Washington, D.C., to rally for the defeated president trying to overturn the 2020 election. Eastman says he never went inside the U.S. Capitol, and he hasn’t been accused of any crimes connected to the riot that day. But he also has ties to the Oath Keepers, the far-right group whose leader was found guilty of seditious conspiracy for a violent plot to disrupt the transfer of power on Jan. 6: Eastman purchased a lifetime membership to the group nearly a decade ago.
Throughout the saga, Eastman has shown no remorse or regret. If anything, the civil suit launched against him has emboldened him.
The trial, he said in an interview, amounted to: “You went to a political event that was a no-no, and now we’re going to punish you. And that’s fundamentally not American.”
Another viewpoint, of course, is that Jan. 6 itself — an unprecedented attack on U.S. democracy — was not American. Indeed, the legal challenge to Eastman’s ability to serve was one of numerous efforts across the country to hold elected officials accountable for their conduct that day. And it represented one of the most rigorous tests to date of whether insurrectionists, or those affiliated with them, could be legally disqualified from holding public office.
“It’s so basic,” Vic Fischer, 98 and the sole surviving delegate to Alaska’s 1950s-era constitutional convention, said in an interview. “If somebody comes along and wants to destroy the constitutional structure of Alaska, they should not be elected to the Legislature.”
Eastman’s week-long trial turned into a bizarre spectacle at times, and a very Alaska one at that. Massive snowstorms delayed the start of the proceedings. Joe Miller, the tea party Republican who beat Sen. Lisa Murkowski in the 2010 GOP primary but then lost in the general election, was Eastman’s lawyer. Witnesses included Stewart Rhodes, the Oath Keepers chief who testified from jail; John Eastman, the Trump attorney who tried to orchestrate a way for the former president to hold on to power (and has no relation to David Eastman); and an ex-FBI employee who claimed that Mitch McConnell and Beto O’Rourke were agents of the Chinese Communist Party.
Those figures, along with a Superior Court judge, a local anti-Trump, ex-Republican politician and his attorney from an Anchorage civil rights firm were all there to help answer some fundamental questions: Had Eastman violated his pledge to the Alaska Constitution with his Oath Keepers membership? Did the U.S. Constitution’s free speech and association rights allow Americans to serve in elected government posts while simultaneously affiliating with groups that threaten the existence of the government itself?
Two days after the trial’s conclusion, Eastman won. The judge ruled that the First Amendment barred disqualification of a lawmaker simply for being a passive member of an insurrectionist group — though it would have been different had Eastman taken an active role in the Oath Keepers’ affairs.
That didn’t mean the quest to hold Eastman accountable was over just yet.
In addition to a possible appeal, the state Legislature has its own rules about who gets to be a member, and some Eastman critics hoped a bipartisan coalition would still act. Yet in the end, the politics were too difficult.
Eastman continues to serve in the Legislature, as something of a pariah but defiant as ever. And his presence is a glaring reminder that two years after Jan. 6, the insurrectionist forces unleashed by Trump and his allies have yet to be expunged from American politics.
A Firebrand Arrives
Eastman has been a bomb-thrower since he landed on the Alaska political scene.
Hailing from Sarah Palin’s hometown of Wasilla, Eastman was first elected to the state House of Representatives in 2016 — defeating a five-term GOP incumbent in a primary after attacking him as too eager to compromise conservative principles.
Almost immediately, Eastman earned a reputation for inflammatory statements. In his first year in office, he claimed, without evidence, that women from Alaska’s largely Indigenous rural villages were glad to become pregnant so they could take state-paid flights to Anchorage and Seattle for abortions.
He consistently voted against legislation that otherwise had the unanimous support of his colleagues — he’s been the lone “no” vote dozens of times — including on measures to promote racial equity. He opposed bills honoring Hmong veterans, Black History Month and the Black soldiers who helped build the Alaska Highway during World War II. He also became one of the leading advocates of toughening prison sentences by reversing a criminal justice reform bill that passed before he was elected.
Eastman, 41, is a graduate of the U.S. Military Academy at West Point and spent his career as a military police officer in Alaska and Afghanistan before being elected. He’s described his uncompromising principles as guided by the oaths he’s sworn to the state and U.S. constitutions. And he says his colleagues are often “peer pressured” into votes that are not in the best interests of their constituents.
“At West Point, we were taught, and taught others, that any officer who was willing to honor that oath to the point of losing their life in combat should certainly be willing to be fired for honoring that same oath," Eastman has written. “If you are willing to die for your country, you need to be willing to be fired for it as well.”
Eastman’s approach has cost him at the state Capitol. He’s feuded with some of his own GOP colleagues; in 2017, the House, then led by a mostly Democratic coalition, formally reprimanded him for his abortion-related comments; and a joint House-Senate committee voted 9-1 last year against a request by Eastman to intervene in the lawsuit challenging his qualifications to serve.
His antagonism toward the establishment and his loyalty to his principles have made him enormously popular among Alaska’s conservative activists. They’ve even earned him some begrudging respect from his most vehement critics.
“It really has disadvantaged him so much. If it was really all theater, he probably would have moderated his views,” said Ivan Hodes, a long-time Eastman critic who’s campaigned to have him removed from the Legislature. “It’s like The Big Lebowski: ‘Say what you want about the tenets of National Socialism, Dude — at least it’s an ethos.’”
On the Stand
As Trump’s term came to a close, Eastman flew to Washington, D.C. for the president’s “Stop the Steal” rally in January 2021.
Eastman says he was not near the Capitol during the subsequent riot, and no evidence has emerged that he was involved in trespassing or violence. But when his name later appeared on a leaked list of Oath Keepers members, some Eastman opponents began talking about Article XII, Section 4 of the Alaska Constitution — which bars from public office anyone who aids or belongs to a group that advocates the forcible overthrow of the U.S. government.
The line was added to the document at Alaska’s constitutional convention. Delegates said they understood the provision as an “anti-subversive” clause, amid the anti-Communist Red Scare, that Congress required as part of statehood-related legislation.
One of the Alaskans looking closely at the disloyalty clause was Hodes, who, like Eastman, graduated from West Point; he now works as a civilian employee at the Defense Department.
Hodes, who’s Jewish, had been particularly incensed by what he viewed as antisemitic signaling from Eastman. That included a 2021 social media post comparing President Joe Biden’s impatience with Covid vaccine skeptics to war-mongering by Adolf Hitler, along with a link to a website run by a woman labeled as a Holocaust denier by the Southern Poverty Law Center. (Asked at the time if he was a Holocaust denier, he said, “No, there’s nothing to deny. But I do support and defend free speech, because if we can’t talk about those atrocities, then it increases chance they’ll continue.”)
“Ethnic minorities, religious minorities can’t afford to not pay attention,” said Hodes, 40. “When I first moved to Anchorage, the doors of the synagogue were open all the time — you could just walk in. Now, they’re locked.”
Hodes soon started working with an Anchorage-based civil rights law firm, Northern Justice Project, to challenge Eastman’s eligibility to serve. They connected with Randall Kowalke, a retired businessman, to be the face of the lawsuit.
Kowalke had once served on the local borough council and had been a Republican for decades. But he left the party around the 2020 election because, he said, of its transformation into a group of “totalitarian fascists.”
“I still consider myself, on a national level, more conservative than liberal,” he said in an interview. “But not a fascist.”
The trial was supposed to start Dec. 12, but an historic series of snowstorms forced the parties into a short-lived Zoom hearing where Miller, Eastman’s lawyer, pleaded for a delay because of lagging internet service.
The next day, Eastman, Kowalke and their attorneys assembled at the Palmer courthouse.
The legal case against Eastman was thought to hinge on testimony from a pair of domestic extremism experts. Kowalke’s attorney used them to argue that the Oath Keepers advocate for the forcible overthrow of the U.S. government — and that Eastman’s ongoing membership would thus meet the Alaska Constitution’s requirement for disqualification.
The experts’ testimony, over Zoom, methodically examined the group’s organizational structure and its role in the Jan. 6 insurrection. It was noted that 33 Oath Keepers were ultimately charged, including those who joined military formations that entered the Capitol and searched for former House Speaker Nancy Pelosi.
One of the experts, George Washington University research fellow Jon Lewis, referenced statements made before the riot by Rhodes, the group’s leader, about a “massively bloody revolution.” He cited internal Oath Keepers messages, made public as part of members’ prosecution, that said the group wouldn’t get “through this without a civil war.” And he described how Oath Keepers members brought guns to a Virginia hotel in advance of Jan. 6, though they were not used at the riot.
Miller produced an array of defenses of the Oath Keepers: Only a small fraction of the group’s members were present on Jan. 6; the delayed election certification caused by the riot wasn’t the same as an “overthrow”; and the seditious conspiracy charges against the Oath Keepers members referenced the U.S statute against forcefully interfering with the execution of federal laws — not a separate section that applies to conspiracy to overthrow the government.
“They’re looking at some bad things that were said by a few people. And they’re trying to then basically pollute anybody that has any affiliation with the group,” Miller said in an interview at the courthouse. “They can say bad things all day long about what Stewart Rhodes said he was going to do. But all those things were contingency based. He never brought arms into the Capitol. There was no ‘bloody civil war.’”
Miller also took the defense deep into a rabbit hole of far-right conspiracy theories — exemplified by the first witness testifying in Eastman’s defense, former FBI agent John Guandolo. Guandolo is known for promoting anti-Muslim conspiracy theories and calling Islam “barbaric and evil”; he was also once sued for punching a sheriff at a conference during a scuffle.
Guandolo laid out the discredited argument that members of groups on the left like Antifa and Black Lives Matter — who he said he identified by their black backpacks and clothing — were involved in the Jan. 6 insurrection. Then, under cross-examination, he argued that Chinese Communist groups and agents — whose ranks, he said, include McConnell, O’Rourke, U.S. Interior Secretary Deb Haaland and former FBI Director James Comey — are a more urgent threat to the U.S. government.
Rhodes, the Oath Keepers leader, testified on Eastman’s behalf over a scratchy phone line from jail in Alexandria, Va. — breaking away at one point, he said, when a guard sent him back to his cell. Rhodes cited his group’s mission of defending the Constitution and said that members who entered the Capitol were “stupid” and went “off-mission.”
“It was not our mission and it exposed us to the persecution of our political enemies,” he said. “That’s why I’m here, in jail.”
John Eastman, the Trump attorney, was paid $500 an hour to be one of David Eastman’s expert witnesses, and he centered his testimony on the lawmaker’s First Amendment defense. Even if others in the Oath Keepers did incite “imminent lawless action,” which John Eastman didn’t concede, he argued that the U.S. Constitution’s freedom of association rights would still protect David Eastman’s membership as long as he didn't participate in the incitement himself.
David Eastman also took the stand in his own defense, calling the case against him just another form of “cancel culture.” He also expressed no remorse about his membership in the Oath Keepers, saying, “Any organization that will assist us in supporting and defending the Constitution is an asset to this country.”
In a 49-page decision issued two days after the end of the trial, Superior Court Judge Jack McKenna accepted many of Kowalke’s arguments, concluding that the Oath Keepers have, “through words and conduct, taken concrete action to attempt to overthrow by violence the United States government.”
But he still declined to disqualify Eastman, based on the First Amendment. McKenna argued Alaska can only infringe on a person’s association with a group if they have “a specific intent to further the illegal aims of that organization.”
Eastman, McKenna wrote, donated more than $1,000 to the Oath Keepers and bought its merchandise. But he received only “limited communications” from the group like membership-related emails; he wasn’t part of internal chats or meetings, didn’t meet with Oath Keepers on Jan. 6 and didn’t approach or enter the Capitol.
Kowalke could have appealed the decision to the Alaska Supreme Court, but ultimately decided against it. His attorney questioned McKenna’s interpretation of some of the pre-existing First Amendment case law, but concluded that the judge’s findings about Eastman’s intent would be too hard to overturn. Also, he noted a losing appeal might have made it harder to pursue similar cases in Alaska and throughout the country, and that wasn’t worth the risk.
Regardless, Eastman’s victory in court highlights the legal and constitutional obstacles that stand in the way of efforts to disqualify elected officials alleged to have violated their oaths of office on Jan. 6.
A Final Attempt
But the push for accountability for Eastman wasn’t over. There was still another branch of government to consider, and pro-democracy activists in Alaska soon began calling on the state House to bar Eastman from the new Legislature when it convened in January.
And Alaska’s unique politics made Eastman’s fate even more uncertain.
The midterm election had left the 40-member Alaska House almost perfectly split between Democrats and Republicans, with a few independents aligned on each side. As the Legislature convened last month, neither party had been able to form a majority, and Eastman’s continued presence had the chance to tip the balance — but not in the way you’d expect.
Eastman is such a firebrand that Republican leadership couldn’t count on him as a reliable vote. Indeed, some liberal legislators resisted the calls for Eastman’s exclusion, preferring to see him keep his seat than be replaced by a politician more aligned with the rest of the GOP caucus.
“All the principles I care about, from the right to choose, to public schools, to timely food stamp payments would be damaged by a reconfigured Wasilla seat,” state Rep. Andy Josephson, an Anchorage Democrat, said in an interview.
Still, activists hoped that other Democrats would entertain a vote to disqualify Eastman from office.
But kicking him out would also require GOP support in the narrowly divided chamber. Would Republicans seize the opportunity to oust Eastman in favor of a more pliant member, or because his support for an insurrectionist group that helped fuel the Jan. 6 riot was finally a step too far?
As the Legislature convened, Scott Kendall, a well-connected Alaska attorney and political figure, wrote an op-ed pushing lawmakers to act.
Kendall had been chief of staff to former Gov. Bill Walker, a Republican-turned-Independent, and he noted that members of the House actually had two options for pushing Eastman out: They could expel Eastman on a two-thirds vote after he was seated or simply vote to exclude him at the outset of the coming legislative session by a simple majority.
Regardless of the judge’s ruling on Alaska’s disloyalty clause, Kendall argued Eastman’s ouster was required because he violated Section 3 of the 14th Amendment to the U.S. Constitution. That’s a post-Civil War provision that disqualifies from office anyone who swore an oath to support the Constitution and then took part in or backed an insurrection.
A New Mexico judge used the “disqualification clause” last year to remove a county commissioner, Couy Griffin, from his position, after he was convicted of trespassing at the Capitol on Jan. 6. The Washington-based group Citizens for Responsibility and Ethics helped lead the lawsuit challenging Griffin’s qualifications, and it included Eastman in a recent report as an elected official who deserved scrutiny.
“You should not be allowed to run the government you tried to overthrow,” Debra Perlin, CREW’s policy director, said in an interview, referring to Eastman. The legislative branch, she added, has to do its own “self-preservation.”
Or maybe not.
Ultimately, the Legislature moved on. Republicans cobbled together a majority and though they didn’t want Eastman in their club — he is not a member of any party caucus, and he was stripped of one of his aides — they declined to exclude or expel him from office.
Voting to deny Eastman a seat in the House likely would have incited a backlash from conservative activists. GOP House members were quick to hang up the phone when reached to discuss Eastman’s continued service in their chamber.
“The one thing I have no comment on is David Eastman,” said Anchorage Republican Rep. Laddie Shaw.
Eastman, of course, could have neutralized some of the jeopardy he faced by renouncing his association with the Oath Keepers. But the challenge to his membership seemed to only solidify his resolve.
Not long after beating the legal challenge to his qualifications, Eastman was back in Washington, D.C., where he attended a vigil for defendants charged with crimes related to Jan. 6.
In a phone interview speaking outside the jail where the vigil was held, he vowed to champion those who have faced consequences for their conduct on that day.
“Every single one of my constituents, and every single Alaskan that was there on Jan. 6 that participated in a peaceful rally, that’s their right,” Eastman said. “And I will absolutely go to bat for them.”
