Hiltzik: John Eastman’s fealty to Trump could cost him

Donald Trump’s flurry of first-day executive orders aimed at remaking American government in his image may have Americans’ heads spinning, but one stands out from the rest for its sheer audacity.

That’s the order to rescind “birthright citizenship,” which is constitutionally granted to almost all children born within the U.S. borders.

Opposition to birthright citizenship emerged almost immediately with its enactment as part of the 14th Amendment, which was adopted in 1868, and has waxed and waned in parallel with political controversies over immigration.

But its emergence as a core issue for Trump owes much to the work of a California lawyer. He’s John C. Eastman, a longtime Trump advisor who is facing disbarment proceedings due to his role in the Jan. 6 insurrection.

Eastman has advocated a reconsideration of birthright citizenship — or as I wrote in 2020, “flogging this dead horse” — for years. He has consistently been in the minority among legal authorities on the topic.

Still, he maintains, as he did in a recent conversation with me, that “the leading scholars on this issue all agree with me.”

He added: “I’ve probably been most prominent more recently in articulating that position.” He declined to say if he had consulted with the Trump campaign or transition team before Trump issued the executive order.

Eastman’s criticism of birthright citizenship unfurled mostly through legal treatises and in conservative publications until 2020, when an article he wrote for Newsweek made him the public face of the issue.

The article, which appeared the day after Joe Biden picked Kamala Harris as his 2020 running mate, questioned whether Harris was eligible for the office of president (or by extension vice president) because she didn’t meet the constitutional requirement that a president be a “natural born citizen.”

“Her father was (and is) a Jamaican national, her mother was from India, and neither was a naturalized U.S. citizen at the time of Harris’ birth in 1964,” Eastman wrote. “That … makes her not a ‘natural born citizen.’”

Within days, Eastman’s argument was taken up by Trump, who cited him as a “very highly qualified and very talented lawyer.”

Newsweek, however, promptly disavowed Eastman’s article. In an editor’s note, the magazine tried to rebut objections that it had been tied in with the “birther” claims that Barack Obama had not been born in the U.S. Rather, it said, the article was merely airing a legitimate legal debate. Two days later, it posted a second note, in which it stated that “this op-ed is being used by some as a tool to perpetuate racism and xenophobia. We apologize…. We entirely failed to anticipate the ways in which the essay would be interpreted, distorted and weaponized.”

Before examining the persistence of attacks on birthright citizenship, a few words about Eastman. Once the dean and a law professor at the Fowler School of Law of Orange County -based Chapman University, Eastman’s activities as a lawyer for Trump have led his career down a dark hole.

Eastman played an important role in promoting Trump’s false claim that the 2020 election was stolen from him, and addressed the crowd at Trump’s Washington rally on Jan. 6, 2021, that led to the attack on the Capitol that day.

A week after that rally, Eastman and Chapman reached an agreement under which he agreed to retire from the university, effective immediately.

In January 2023, the State Bar of California launched disbarment proceedings against Eastman, citing his efforts to promote Trump’s unfounded claim that the election was stolen. After a more than monthlong trial in the state bar court, in a March 27, 2024, ruling Bar Judge Yvette Roland found Eastman culpable on 10 of the 11 state bar charges and recommended his disbarment.

Eastman “made multiple false and misleading statements in his professional capacity as attorney for President Trump in court filings and other written statements,” Roland ruled.

Under state bar rules, as long as Roland’s disbarment recommendation stands, Eastman is ineligible to practice law in California. His license was also suspended by the Washington, D.C., bar. He is also facing felony charges in Georgia and Arizona connected with the 2020 election; both cases, in which Eastman has pleaded not guilty, are pending. None of these cases involve the birthright issue.

Eastman is still fighting disbarment, based in part on his position that his actions on Trump’s behalf are protected by his 1st Amendment free-speech rights and that his claims about the election being stolen weren’t knowingly false. Oral arguments before the state bar court are scheduled for March 19. If the disbarment recommendation stands, the final decision will be made by the state Supreme Court.

That brings us back to the birthright issue. The 14th Amendment was enacted as a direct response to the Supreme Court’s egregious 1857 Dred Scott decision, which held that persons of African descent, such as enslaved people and formerly enslaved people, could not be considered citizens under the Constitution.

In its very first line, the amendment states forthrightly, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Legalistic debate over birthright tends to parse the clause “subject to the jurisdiction thereof.”

Most legal scholars — and courts that have considered the issue — accept the prevailing conclusion that it was meant to exclude chiefly children of foreign diplomats and ministers and those of occupying foreign armies, who remain under the jurisdiction of their own countries.

(Native American tribes were also excluded initially on the reasoning that the tribes claimed sovereign authority, but they were brought under the amendment’s protection in 1924.)

Some critics argue that the amendment could not have bestowed citizenship on the children of illegal immigrants because “illegal immigration” didn’t exist in 1868, as the U.S. then had no immigration restrictions.

That’s a dubious claim, constitutional scholar Garrett Epps has written. “‘Illegal aliens’ are ‘subject to the jurisdiction’ of both state and federal legal systems. They can be, and are every day, arrested, prosecuted and sentenced (even to death) in American courts,” and can be sued in civil courts.

What Trump could do about birthright citizenship is unclear. Repealing the 14th Amendment would require a new constitutional amendment, a lengthy and complicated process.

Some experts have said that Congress could act to redefine “jurisdiction,” but even a leading expert on the topic, Rogers M. Smith of the University of Pennsylvania, has acknowledged being in the “minority of scholars who thinks the Congress can act” to exclude undocumented immigrants’ children.

Trump might be hoping that the current Supreme Court majority, which has disdained its own precedents, would scrap this one — though whether it would discard a precedent that has stood for more than a century is imponderable.

The Supreme Court’s support of a broad definition of birthright citizenship dates to 1898, in a ruling involving Wong Kim Ark, whose citizenship as the U.S.-born child of Chinese immigrants was challenged because his parents had had no right to become citizens themselves. The court rejected the challenge.

In a 1982 case, all nine justices accepted the view that undocumented immigrants, “even after their illegal entry” to the U.S., are covered by the 14th Amendment.

A remarkable feature of birthright citizenship is that the broadest definition is supported not only by progressives, but conservatives. Newsweek published a rebuttal to Eastman’s article in 2020 by conservative UCLA law professor Eugene Volokh. At the same time the libertarian Cato Institute attacked Eastman’s claims head-on. And on Inauguration Day, Cato’s director of immigration studies, David J. Bier, issued a series of broadsides against Trump’s executive order, calling it a “blatantly unconstitutional … attack on American tradition, the rule of law, the Constitution, and indeed Americans themselves.”

In truth, the core issue of birthright citizenship isn’t constitutional. It’s political, and its politics are acrid in the extreme. The issue is inextricably bound up with racism and the notion of America as a beacon of white supremacy.

That has been the one constant in the opposition to birthright citizenship since the enactment of the 14th Amendment, legal scholar Rachel E. Rosenbloom has observed, noting that opposition is typically couched “in a highly racialized language of crisis and invasion.”

A proponent of a proposed 2009 California ballot initiative aimed at cutting off public benefits for undocumented immigrants, for example, asserted that “illegals and their children” were engaged in “invasion by birth canal.” (The measure didn’t make it onto the ballot.)

Trump has repeatedly employed the rhetoric of xenophobia and invasion to justify his attacks on immigrants. “They’re poisoning the blood of our country,” he said at a rally in 2023, referring to immigrants “from Africa, from Asia, all over the world. They’re pouring into our country.”

Opposition to birthright citizenship has tended to surge alongside concerns about immigration, especially when the latter has had a racist component. The Wong Kim Ark case was designed as a test of the Chinese Exclusion Act of 1882; the 1982 case arose as a challenge to a Texas law that denied funding for the K-12 education of undocumented immigrant children. (The Supreme Court struck down the law.)

Eastman told me in 2020 that he was troubled by what he called the “false charge” that he questioned birthright citizenship merely “because Kamala Harris is Black.” He points out that he has been studying and writing about so-called birthright citizenship for nearly 20 years “in all sorts of contexts,” not merely Black politicians.

Notwithstanding Eastman’s disavowal of racist intent, one can’t attribute the same innocence to Trump and his immigration policy team. In his Jan. 20 executive order on border security, he again invoked “the language of crisis and invasion” — “Over the last 4 years,” the order states, “the United States has endured a large-scale invasion at an unprecedented level.”

Truly, the ideological basis of the attack on birthright citizenship has barely changed in 127 years.