OPINION: Courting disaster: Unseating elected representatives via the judiciary is a dangerous precedent

Extraordinary relief demands extraordinary proof. Temporary restraining orders are extraordinary relief. In a remarkably brief 13-page order, a state Superior Court judge recently granted a temporary restraining order, ruling it is more likely than not that David Eastman is not eligible to serve in the Alaska State House of Representatives. The court will hold a preliminary injunction hearing in December, after the election. The judge will then decide whether Eastman may continue to serve in the Legislature, even if his constituents re-elected him in November.

Who is David Eastman? He is a state legislator, representing House District 27. Eastman is conservative. He rankles many. A West Point graduate and veteran who served in Afghanistan, Eastman holds now outdated values of “duty, honor, country” — values perhaps ill-suited in political arenas where compromise, humor and “half-truths” disguised as tact are more commonly encountered. Still, he has served in the State House since Jan. 2017. In the August primary, voters in his district cast 1,931 ballots in Eastman’s favor (52% of all votes cast). So we are at a pivot point where one unelected judge may disenfranchise 1,931 (or more) Alaskans.

What is the legal basis for this temporary ruling? Under the “disqualification for disloyalty” clause of Alaska’s constitution, a person who advocates for the overthrow by force of the U.S. or state government, or who aids or belongs to any party or organization which does so, is barred from holding office. Eastman belongs to a conservative political group called the Oath Keepers. Some Oath Keepers were involved in the Jan. 6, 2021, riot as Congress met to certify the 2020 election results. Eastman was in Washington, D.C., attending President Donald Trump’s rally. However, as best as may be discerned, there is no evidence Eastman did anything else. No evidence has been presented to establish he rioted. No evidence has been presented to show he fomented insurrection. No evidence has been presented that Eastman advocated for the overthrow by force of the U.S. or state government. He did not violate the U.S. Constitution. In fact, Eastman engaged in activity explicitly protected by the U.S. Constitution, to peaceably assemble and petition the government. For that matter, his membership in the Oath Keepers is protected by freedom of association.

What are the facts? If there was no evidence to show that Eastman advocated for the overthrow by force of the U.S. or state government, what was the evidence presented for this extraordinary ruling? There was no actual testimony from any witness. The judge acknowledged his decision was “based upon a limited record and after the testimony of no witnesses.”

“Limited record” is a charitable description. Three affidavits were filed, one from the plaintiff (Randall Kowalke) and two from experts hired by Kowalke. No one testified in person where breathless, pearl-clutching allegations could be tested by cross-examination. Kowalke is a former Mat-Su Borough Assembly member. One expert, Matthew Kriner, styles himself a “Senior Research Scholar” at Middlebury University’s Center on Terrorism, Extremism and Counterterrorism. The other expert, Jonathan Lewis, describes himself as a “research fellow with the Program on Extremism at George Washington University.” Apparently no tenured professors, experienced U.S. Department of Justice experts or FBI agents were available.

Both Kriner and Lewis opined that certain members of the Oath Keepers were dangerous extremists who had engaged in criminal acts. Lewis counted 32 Oath Keepers who “had been charged with federal crimes” related to Jan. 6 events. Lewis also noted nine of those had “since pled guilty to related charges.” Those sound like a lot of bad hombres, until we learn from the court’s order that there are “tens of thousands” of Oath Keeper members. Essentially, Kriner and Lewis concluded the Oath Keepers are a terrorist group engaged in activities to overthrow the government because a fraction of their members were arrested for events connected to Jan. 6 and otherwise used “violent rhetoric” in speeches.

“Violent rhetoric” is an interesting choice of words. Your “violent rhetoric” is probably someone else’s “free speech.” In May 2020, U.S. Sen. Chuck Schumer famously pointed a finger at the U.S. Supreme Court and threatened two U.S. Supreme Court Justices (“I want to tell you, Gorsuch; I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”). Hardly anyone blinked an eye. No one attributes any “violent rhetoric” to Eastman.


So what about Eastman? He denied and denies having done anything unlawful. His denials stand unrebutted. Eastman notes he has sworn several oaths to support and uphold the U.S. Constitution, and does not support any group that advocates for the violent overthrow of the government. Eastman contributed to the Oath Keepers in 2009 and was awarded a Life Membership as a result. That’s the “evidence” standing against him.

It is undeniable that some Oath Keepers engaged in criminal conduct on Jan. 6, 2021. But there are (in the court’s own words) “tens of thousands of members.” The fact that a few dozen have been indicted (but not yet convicted) would seem to be an impossibly thin reed to support such sweepingly drastic relief as disqualification from office. Perhaps worse, somehow lost in all of this is the “presumption of innocence” — only nine Oath Keepers have actually pled guilty to anything. There is no evidence Eastman knows or communicated with any of these indicted or convicted Oath Keepers.

Based on this “limited record,” the court concluded “Kowalke has shown a probability of success on the merits.” The court’s order included no analysis of First Amendment rights. There was no evidence regarding the scope or meaning of the “Disloyalty Clause.” What was the intent of such a clause to begin with — is it a vestige of 1950s America, blacklists and McCarthy witch-hunts? There was no testimony. There was no evidence to prove Eastman actually did anything wrong. There was no evidence that he even knew or communicated with anyone who engaged in any unlawful activity.

Am I the only person who finds this alarming? How has it come to this? Any political group on either end of the spectrum can find a research fellow to proffer opinions maligning political opponents. Political opponents can trump up charges based on guilt by association and use the courts to toss duly elected officials from office. Even if the lawsuits are unsuccessful, the adverse impact is clear. Persons seeking office will have time, money and resources tapped to defend against harassing lawsuits. Reputations are damaged. Voters receiving sketchy news will withhold support.

I don’t know Eastman. I don’t live in his district. I am not a member of the Oath Keepers. However, I like to think I’d have enough courage to second-chair John Adams in defending Capt. Thomas Preston. Make no mistake, using the courts to disenfranchise elected officials is a dangerous, destructive and destabilizing tactic that is further poisoning an already toxic political environment. Here in Alaska, we have already witnessed numerous attempts to label protected actions by Gov. Mike Dunleavy as “unconstitutional” because of his budgetary decisions. Those wild accusations from rank political opponents led to an unsuccessful recall effort. At least in the context of a recall election, all citizens had a chance to consider and support (or not) the recall petitions that circulated. The overwhelming majority of Alaskans recognized the recall campaign for what it was — a crass and ambitious political stunt — and declined to go along for the ride.

This new tactic of using the judicial system to unseat elected representatives, however, is more pernicious. Extraordinary relief demands extraordinary proof. The party seeking relief carries that burden. Untested expert affidavits ascribing guilt by association should never be enough to toss elected officials from office. Exercising constitutional rights should not be grounds for disqualification from office. Our courts should not be a forum for disenfranchising voters. If this dangerous, destabilizing and destructive trend is not arrested, we will all suffer its consequences. Let the voters decide Eastman’s fitness to serve.

Gregory Fisher is an attorney in private practice in Anchorage. He does not represent any party in the Eastman litigation. The views expressed here, along with any mistakes, are his own and not attributable to his firm or anyone else.

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