John C. Eastman, the Trump lawyer behind the failed attempt to overturn the 2020 presidential election, is again in the media spotlight. The New York Times now reports that Eastman not only worked behind the scenes with right-wing activist and SCOTUS spouse Ginni Thomas to roll back the election results, but also that on Christmas Eve 2020 he emailed another Trump lawyer, Kenneth Chesebro, with some explosive inside news: Eastman’s SCOTUS contacts were telling him that there was already a “heated fight” within its ranks about how to respond to Trump’s election challenges. An Eastman political ally, Chesebro answered by suggesting that SCOTUS might prove more receptive to Trump’s case if “wild chaos” transpired on January 6th. Eastman evidently agreed: he conspired with Rudy Giuliani and others to generate the requisite “wild chaos” by obstructing a peaceful handover of power to Joe Biden. On January 6th, Trump urged his followers to participate in the violent protests: “Be there. Will be Wild!”
On March 14th this year, Judge David O. Carter of the Central District Federal Court of California determined that Eastman probably committed felonies, with his actions amounting to “a coup in search of a legal theory.” The House of Representatives committee investigating the attempted Trump coup is already making a strong case that Eastman and other Trump intimates defrauded and obstructed Congress. In a shocking memo, Eastman advised Pence to declare Trump president, despite his clear electoral defeat by Joe Biden. Many political and legal scholars, including this author, have turned to Carl Schmitt to make sense of Trump’s authoritarianism. Unfortunately, we have neglected Trump’s close ties to a group of extreme right-wing followers of Leo Strauss (1899-1973). Eastman and other hardcore Trump disciples have relied on a highly selective interpretation of Strauss’ complex ideas to justify Trump’s worst antidemocratic proclivities. Their dangerous ideological brew sheds fresh light on the authoritarian political and legal views that helped pave the way for the violent January 6th attack.
Leo Strauss and His Followers
Strauss was a complicated figure who has had a huge impact among conservative US political theorists. As a young scholar in Germany, Strauss probably favored an authoritarian resolution of Weimar’s final political crises. Strauss was traumatized by Weimar’s collapse, which he attributed to moral relativism and German intellectuals’ failures to embrace the political wisdom of classical antiquity, as most impressively found in Plato and classical natural law. Predictably, one of Strauss’ regular targets was the left-liberal legal positivist Hans Kelsen, whose rejection of moral absolutism Strauss viewed as complicit in interwar Germany’s pathologies. Moral absolutes, Strauss countered, were indispensable to warding off decadent modernity’s self-destructive tendencies.
Strauss ultimately made his peace with liberal democracy in the United States, where he thrived professionally and became a professor at the prestigious University of Chicago. His followers have made a reasonable case that Strauss embraced postwar US liberal democracy as perhaps the best of modernity’s not-very-appealing political options. Given his premodern and antidemocratic normative preferences, that embrace was unavoidably uneasy and fragile, a fact recently corroborated by the sharply diverging responses among his disciples to Trump’s authoritarianism.
Prominent “east coast” Straussians like William Kristol have spoken out powerfully against Trump. Other “west coast” Straussians, mostly affiliated with the right-wing California-based Claremont Institute, have jumped on the Trump bandwagon. They interpreted Trump’s call to “make America great again” as consistent with the Claremont Institute’s self-proclaimed mission to restore the original “principles of the American founding to their rightful, preeminent authority in our national life.” Eastman, who earned a PhD at Claremont Graduate School and remains a Claremont Institute affiliate, belongs to this second camp.
The Claremonsters’ Civil War
Glenn Ellmers, one of Eastman’s Claremont colleagues, openly and quite accurately brags that the self-described “Claremonsters” immediately “gave intellectual legitimacy” to Trump’s “populist revolt against the politically correct contempt of the ruling class,” a revolt they supported by fervently buttressing his cause.* The Claremonsters early on endorsed Trump’s presidential bid. They transformed the Institute’s core publications, The Claremont Review of Books and The American Mind, into pro-Trump ideological organs and subsequently served in official and semi-official capacities for Trump in Washington D.C. Claremont Review, for example, published an incendiary, widely discussed endorsement of Trump’s 2016 candidacy by Michael Anton, a Claremont graduate who later went on to work for Trump on the National Security Council.
A Claremont senior fellow, Director of its Center for Constitutional Jurisprudence, and former clerk to Justice Thomas, Eastman is probably the most prominent jurist among the Claremonsters. Eastman’s attempt to liaise with Ginni Thomas to overturn the election should come as no surprise: Thomas’s long-standing personal and professional ties to the west-coast Straussians have been widely documented. Prior to being named to SCOTUS, for example, Thomas turned to two Claremont fellows, John Marini and Ken Masugi for “a crash course on the nation’s founding text and its philosophical underpinnings.” ** Thomas is clearly the Claremonsters’ favorite SCOTUS justice.
Eastman and his Claremont colleagues have reworked Strauss’ messy legacy into a crude pro-Trump apology. An illuminating recent statement of their constitutional thinking can be found in Crisis of the Two Constitutions (2021), the most recent book by Charles Kesler, the Claremont Institute’s leading intellectual figure, editor of Claremont Review, and a member of Trump’s ill-fated 1776 Commission, a controversial body tasked with opposing leftist views of US history supposedly widespread among teachers and scholars.*** Strauss’ preoccupation with Weimar looms large among the Claremonsters. Kesler ominously warns that “[e]very republic eventually faces what might be called the Weimar problem. Has the national culture, popular and elite, deteriorated so much that the virtues necessary to sustain republican government are no longer viable?” (p. 376). Reminiscent of crisis-plagued Weimar, the US is undergoing a “cold civil war,” with two diametrically opposed visions of the constitutional order engaged in a life-or-death struggle. The first, superior original constitutional order has its roots partly in classical natural right and the unsurpassed wisdom of its eternal moral verities; a second pathological constitutional order represents an assault on natural right. According to Kesler, Americans mistakenly assumed that revolutionary challenges to their republic came to an end with the Soviet Union’s demise. In reality, liberals and progressives at home have been waging a war to supplant the founders’ original constitutional vision, firmly rooted in unchanging natural right, with a novel left-leaning system whose ascent would mean victory for moral relativism and nihilism. Even the mild-mannered Joe Biden represents a revolutionary figure actively cooperating with “woke” mobs that have occupied streets and are bent on transforming America’s cold into a “hot” civil war.
Despite Trump’s efforts to overturn the election results, Kesler continues to praise the former president’s “courage in defense of one’s own” (p. 396). By mobilizing a mass movement to uphold the framers’ original constitutional model, Trump could have succeeded where previous Republican presidents foundered. Kesler not only views the US founding as resting on elements of classical natural right, but he also hopes that heroic presidential leadership might have successfully revived “the founders’ wise principles and fortify them again with prudent statesmanship” (pp. xvii, 3-32). Trump’s missed opportunity to revitalize the republic stemmed from his leadership of a popular movement that opposed the consolidation and expansion of liberalism and progressivism, forces that even Ronald Reagan had failed to thwart by acquiescing in the administrative and welfare state’s cancerous growth. “Perhaps only a genuine outsider could have smashed it” (p. 395). Trump, it seems, fit the bill. “In his confidence in America’s principles and in the ultimate justice of the people…Trump resembles those brave conservatives”—Kesler names Clarence Thomas—now resisting the administrative state and dangerous, left-wing “guilt-mongering” about race and gender (p. 397). Trump’s failure to hold onto power means that the US remains in an existential crisis, with no satisfactory answer to the “Weimar problem” in view.
Astonishingly, Trump’s disdain for longstanding political mores, institutional norms, and the rule of law is simply ignored. Why? For Kesler, “[t]here is an old distinction—between constitutional law and the law of the Constitution—that might be repurposed here” (p. xv). Trump stood valiantly on the side of the latter and against the former, which has been polluted by poisonous liberal and progressive public policies and reforms. Judicial precedents that impeded Trump merely represent diseased products of the second, liberal-progressive constitutional system, and thus “are not of interest to us” (p. xv).
Authoritarian Constitutional Originalism
It takes little imagination to see how this weird intellectual mix opened the door to the Claremonsters’ fervent Trumpism. Nor is it difficult to see how it produced a shyster like Eastman. If the US already finds itself in a “cold” civil war, why worry about condoning illegalities to protect the republic from its existential enemies? If Trump represents the guardian of the constitutional order’s superior original core, joining forces with him against its enemies makes sense. Why let the legal technicalities of the US Electoral Count Act impede the resurrection of the framers’ original constitutional vision, based in eternal moral truths? Not surprisingly, the Claremonsters have expressed little if any remorse for their role in Trump’s presidency or his illegal attempt to stay in power.
A familiar Schmittian disdain for legality amid an existential crisis remains crucial to this narrative. Echoes of Schmitt’s view of authoritarian presidentialism as the main guardian of the constitutional order’s fundaments, interpreted in a suitably right-wing fashion, also make an appearance here. Those who have highlighted Trump’s implicitly Schmittian instincts are right to do so.
Yet it would be a mistake to miss how Schmittian proclivities have been repackaged in a reactionary constitutional originalism that invites an authoritarian rollback of decades of political progress. It was Strauss, not Schmitt, who called for a revival of the illiberal and antidemocratic natural law of classical antiquity. The fact that none other than the buffoonish Donald Trump is tasked by Eastman and his Claremont buddies with guarding the wisdom of both the founding “fathers” and classical natural law speaks volumes about the bankruptcy of their political views. Their many intellectual weaknesses hardly make it any less dangerous to a beleaguered American democracy.
Endnotes
* Glenn Ellmers, the Soul of Politics: Harry v. Jaffa and the Fight for America (New York: Encounter, 2021), p. 291.
**Corey Robin, The Enigma of Clarence Thomas (New York: Metropolitan Books, 2019), p. 148
***(New York: Encounter Books, 2021).
William E. Scheuerman is James H. Rudy Professor of Political Science and International Studies at Indiana University (Bloomington).
An earlier version appeared on Verfassungsblog.de (March 15, 2022): Trump’s Straussian Shyster – Verfassungsblog).
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Meet John C. Eastman, Trump’s Straussian Shyster