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Anchorage Superior Court Judge Jack McKenna returned his order in the trial challenging Rep. David Eastman’s membership in the Alaska Legislature, finding the plaintiffs proved everything they needed to disqualify the Wasilla Republican under a strict reading of the Alaska Constitution’s disloyalty clause.
But a strict reading of the disloyalty clause is not, however, the standard that was applied here.
Instead, the judge found that established First Amendment case law essentially provides an escape hatch for Eastman and the plaintiffs would have had to prove that Eastman knowingly joined the Oath Keepers specifically in order to support their anti-government behavior.
On the stand, Eastman claimed he didn’t and that’s what mattered.
“In this case, the court finds that the Oath Keepers are an organization that has, through words and conduct, taken concrete action to attempt to overthrow by violence the United States government. The court further finds that Rep. Eastman is a member of that organization, but that he does not and did not possess a specific intent to further the Oath Keeper’s words or actions aimed at overthrowing the United States government,” McKenna wrote in his order. “The court therefore finds that he is not disqualified from holding public office by Article XII, § 4.”
Go deeper: Read the full order here.
The offramp from the Alaska Constitution’s Red Scare-era disloyalty clause appeared only midway through the trial when Judge McKenna requested additional briefing on whether individuals could be held responsible for the actions of a group. Case law provided by Eastman attorney Joe Miller and Eastman attorney/expert witness/Trump attorney recently referred for charges by the Jan. 6 committee John Eastman supported that theory.
The attorney for Wasilla voter Randall Kowalke argued that the case law shouldn’t apply because it largely related to cases where individuals were being directly penalized for their associations. Attorney Goriune Dudukgian argued this isn’t about Eastman’s associational rights but whether he cans serve in the Alaska Legislature, making the case that the ability to hold office isn’t a guaranteed right.
Judge McKenna disagreed.
“Even under rational basis review, interpreting Article XII, § 4 to bar a person from office for mere membership in an organization violates the First Amendment,” Judge McKenna wrote. “… There is no rational basis to bar a person from public office who has not intentionally supported unprotected speech or conduct by an organization to which that person belongs. Barring a person from public office based merely on their protected associational rights is the type of ‘guilt by association’ that the Supreme Court disapproved of in the cases above.”
Still, Judge McKenna found that under a strict reading of the Alaska Constitution’s disloyalty clause the original two metrics for deciding this case—Is Eastman an Oath Keeper and are the Oath Keepers an anti-government group—had been proved. While it was a long and rambling trial filled with plenty of conspiracy theories, it was the convictions of Oath Keeper leadership that
“The admissions to specific actions made by each individual as to their own actions in the statements of offense paint a clear picture of the members’ actions that day,” Judge McKenna wrote. “When those actions are viewed in context with the structure of the Oath Keepers, Mr. Rhodes’ multiple emails and public statements, Mr. Rhodes’s statements made in the ‘GoToMeeting’ members-only event, and Mr. Rhodes’s statements on the Signal chats, the totality of the evidence points to a concerted plan and effort by the Oath Keepers to use force or violence to prevent the certification of the 2020 presidential election.”
Judge McKenna also noted that the defenses of the Oath Keepers put on by Rep. Eastman—like how the Oath Keepers couldn’t be an anti-government group because its bylaws were against it or because the group is “dormant” because no one has returned Eastman’s emails or how all the incitement was protected speech because it contained “if” clauses or how they weren’t overthrowing, they were just delaying—were “unconvincing.”
“However, when the totality of Mr. Rhodes’s statements is examined in context with the Oath Keepers’ subsequent actions on January 6,” Judge McKenna wrote, “it becomes clear that Mr. Rhodes’s calls for a civil war or insurrection were heeded and acted upon by his members.”
The Alaska Supreme Court concludes a long day of oral arguments in the Alaska Redistricting trial on Friday, March 18, 2022.
The case is almost assuredly headed to the Alaska Supreme Court on appeal.
With that in mind, Judge McKenna preserved the injunction against certifying Eastman’s election at least until a status hearing can be held on Jan. 4 in a week and a half. It’s likely that a challenge would revolve around whether the case law that gave Eastman the technical victory should actually be applied here. The plaintiffs have argued that it shouldn’t, holding that elected office isn’t the same as being a being able to freely associate with anti-government groups under the First Amendment.
It also effectively removes any teeth from the disloyalty clause, meaning Eastman would have had to personally taken part in the insurrection or have quite literally said “I support the Oath Keepers because they attempted to violently overthrow the U.S. Government” to be disqualified.
In a paralell of sorts, this issue came up during the Alaska Redistricting trial earlier this year. There, the attorneys successfully argued that you have to be able to infer intent because no one is ever going to say “This is gerrymandering!” or “I’m overthrowing the government!” That said, the Alaska Redistricting Board certainly gave a lot more to infer from than Eastman has so far.
And looking ahead, Judge McKenna’s determination that the Oath Keepers are, in fact, an anti-government group certainly makes Eastman’s continued membership and continued refusal to say anything to condemn the group an interesting wrinkle.
Throughout the trial, Eastman was asked about his membership in the organization and given several opportunities to say something condemnatory of convicted Oath Keepers founder Stewart Rhodes or any of the other members who’ve been found guilty of attempting to overthrow the U.S Government. He refused any opportunity, though he was still happy to condemn Antifa.
Why it matters
Booted from a huddle with his own caucus, Rep. David Eastman, R-Wasilla, waits alone on the House floor on Feb. 26, 2020. (Screenshot from Gavel Alaska)
Funnily enough, it’s probably not the outcome that a lot of Republicans were hoping for in the Alaska Legislature. As I’ve talked about before, Eastman has not exactly played nice with Republicans that he believes don’t fully align with his idea of what it means to be a far-right conservative, launching directed attacks on Republican legislators specifically on issues like abortion.
His membership in the ill-fated 21-member Republican majority announced immediately after the 2018 election—and therefore his ability to effectively veto anything else the group hoped to accomplish—was a large reason why Republicans weren’t in charge once they gaveled in in 2019.
And things are even tighter this year with what is effectively a 20-20 split in the House with Republicans not only banking on Eastman’s vote but hoping to lure over a member of the largely moderate Bipartisan Majority coalition.
Or, as columnist Dermot Cole put it on Twitter: “This keeps the most worthless legislator in office, weakening the Republicans and improving the chances for a functional state House, which is in the public interest.”