The ADN editorial board’s recent defense of David Eastman wasn’t just disappointing — it was based on a poor understanding of constitutional law, civil procedure and governance.
I agree with the board that the judicial removal of an official elected by the people is an extreme measure and should only be taken when absolutely necessary and justified by the law. But we live in a constitutional democracy, with rules about who may serve in elected office. The rule of law cannot be ignored, and when the plain text of the constitution disqualifies a legislator from office, the Division of Elections should disqualify him as a candidate — and, if they fail to act, a judge must correct the error.
The plain language of the Alaska Constitution plainly states, “No person who advocates, or who aids or belongs to any party or organization or association which advocates, the overthrow by force or violence of the government of the United States or of the State shall be qualified to hold any public office of trust or profit under this constitution.” This clause applies if one chooses to become and remain a member of such an organization. It does not require active participation in the organization’s criminal enterprise. Mere membership is what the constitution unequivocally prohibits. Rep. Eastman admits he is a member of the Oath Keepers; he paid dues, and since his membership came to light, he actually reaffirmed his membership.
In reality, if Eastman publicly disavowed his membership at any point after the Jan. 6, 2021 insurrection, there would have been no case against him — the plaintiff’s attorney, Savannah Fletcher, conceded as much. But he has chosen not to make such a statement, nor has he taken any other action to indicate he has left the organization.
Certainly, it is possible that a federal court could find this clause of the Alaska Constitution violative of the First Amendment to the United States Constitution. But Eastman’s attorney, Joe Miller, made no such constitutional claim. Instead he chose to argue, despite all the manifest evidence, that the Oath Keepers are a mere political club, akin to the Federalist Society, rather than the violent and insurrectionist organization the world now knows it to be. In short, Eastman chose to defend the Oath Keepers rather than disown them. An Alaska judge, in hearing a case based on a clause in the Alaska Constitution, must make a determination based on that clause; he cannot presume the federal unconstitutionality, particularly when no party in the lawsuit makes such a claim.
Furthermore, there is a sound legal argument that the Alaskan loyalty clause is in fact consistent with the First Amendment. The same Constitutional amendment that made state laws and constitutions subordinate to the US Constitution — the 14th Amendment — also prohibits those who engaged in insurrection from holding state or federal office. Therefore, the 14th Amendment actually reinforces the common-sense view that holding public office bears with it duties that do not apply to all citizens. For example, members of the federal civil service are not allowed to belong to extremist organizations.
If the editorial board feels that the clause is an unpleasant and dangerous vestige of the McCarthy era, then they can call for the constitution to be amended and the clause removed. But calling for it not to be enforced because of political friction makes a mockery of the rule of law: Neither the executive nor the courts can ignore the written law of the land. Judge McKenna is correctly carrying out his constitutional responsibility to apply the state constitution to a matter before his court. If the past two years have taught us anything , it is that the rule of law must be held paramount, above the political whims of the moment.
Certainly, the editorial board got many things correct in its piece. Eastman’s views and speech on a great many subjects are abominable. Whether it’s his statements about Alaska Natives or his apparent fetishization of Adolf Hitler and the Holocaust, he’s no one’s idea of an ideal But, he is allowed to have these views and beliefs. It is solely his voluntary and continued membership in a seditious organization that potentially disqualifies him from office.
Finally, I’d ask the editorial board this question: If the organization David Eastman belonged to was called “Al Qaeda in America,” and nine of its leaders were currently on trial for seditious conspiracy for having organized an attack on the US Capitol, would they have written in his defense? I ask the board to examine their biases, as we all must, regarding who does and who doesn’t pose a clear and present danger to our democratic republic.
Scott Kendall served as chief of staff under Gov. Bill Walker. He is now an attorney in private practice.
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