Eastman eligibility trial concludes after a week of testimony on Oath Keepers’ views

The weeklong legislative eligibility trial of Wasilla Republican Rep. David Eastman ended Wednesday with attorneys delivering their closing remarks and Judge Jack McKenna pledging to deliver a verdict as soon as possible.

Eastman and the Alaska Division of Elections were sued in July by Randall Kowalke, a Matanuska-Susitna Borough resident who claims that Eastman’s life membership in the Oath Keepers, a group described by the federal government as an antigovernment militia, violates the Alaska Constitution’s disloyalty clause.

More than 40 members of the Oath Keepers have been charged or pleaded guilty in connection to crimes associated with the Jan. 6, 2021 insurrection at the U.S. Capitol, and attorneys representing Kowalke have argued that Eastman’s membership violates the language of the clause, which states that no public official may belong to or aid an organization that advocates the forcible overthrow of the U.S. government.

If the lawsuit is successful, Eastman could be barred from taking office after his successful re-election in November.

Goriune Dudukgian, arguing on behalf of Kowalke, said Wednesday that the trial demonstrated that “a combination of words and actions by the Oath Keepers go well beyond any First Amendment line of protected speech and clearly show a conspiracy by the Oath Keepers to overthrow the United States government by force.”

The U.S. Supreme Court has ruled that the First Amendment protects Americans’ speech from government censorship unless the speaker is advocating “imminent lawless action,” and Dudukgian said that internal text messages from Oath Keepers’ leaders, combined with their public statements and actions on Jan. 6 meet that standard. 

Eastman himself has not been charged with a crime — the ongoing trial is a civil matter, not a criminal one — and did not enter the restricted area around the U.S. Capitol on Jan. 6, but testimony during the trial showed he and a traveling partner approached the Capitol and watched rioters enter the building.

In written arguments submitted Monday, Dudukgian wrote that mere membership in the Oath Keepers is sufficient enough to trigger the Alaska Constitution’s disloyalty clause, but even if it isn’t, Eastman’s presence at the Grant Memorial near the Capitol “added ‘one more person closer to the Capitol’ and thus constitutes an overt act in support of the insurrection for purposes of Section 3 of the Fourteenth Amendment.”

That amendment to the U.S. Constitution, adopted after the Civil War, precludes someone from holding office if they have engaged in rebellion or insurrection against the federal government.

Attorney Joe Miller, representing Eastman, argued that Kowalke’s attorney has not presented “a scintilla of evidence” that the Oath Keepers as an organization tried to overthrow the government.

To the extent that Oath Keepers were involved in Jan. 6, they acted as individuals and not part of a coordinated group, Miller said.

“Even if the court disagrees with that contention,” Miller said, “there are First Amendment protections that fully insulate Rep. Eastman from any adverse finding in this case.”

Miller attacked expert testimony offered by Dudukgian as politically biased and unfounded in its conclusion that the Oath Keepers advocate insurrection.

He referred to the group’s bylaws, which specifically forbid antigovernment acts, and said it would be a mistake to conflate a contested election with an insurrection.

Eastman’s decision to travel to Washington, D.C., predated a message calling for Oath Keepers to travel to the city, Miller said, and Eastman’s decision to go to a site near the Capitol also occurred before Jan. 6.

Eastman himself testified during the trial that he does not advocate the overthrow of the U.S. government.

In written arguments, Miller said that nearly all of the speech discussed during the trial is political speech. While some statements by Oath Keepers might be viewed as advocating illegal acts, he said, those do not call for immediate action or are contingent on action first by others.

“Granted, judge, there’s some speech that is not nice. It’s unpopular,” he said of writings by Oath Keepers and Eastman that were discussed during the trial. “But that’s what the First Amendment is there for. You don’t get excluded from office just because you’re a member of a group where a member, or even 50 members, of a 30,000-member group do or say things that we don’t want.”

Rebutting Miller, Dudukgian said that there is a constitutional process to challenge an election, “and the fact that people individually think the election wasn’t constitutional doesn’t give them the right to march on the Capitol or riot.”

“Rep. Eastman is in a position of leadership,” Dudukgian said. “His constituents look up to him, and his actions or inactions, even after he learned about the Oath Keepers — or at least, certain individuals associated with the Oath Keepers — his failure to denounce and disassociate from them, I think, is a manifestation of intent.”

McKenna took the case under advisement and said he intends to issue a finding of fact and conclusion of law, something attorneys expect before the end of the year. McKenna’s decision will also address whether the Division of Elections acted appropriately when it certified Eastman as a candidate for office.

Regardless of the verdict, the losing party is expected to appeal to the Alaska Supreme Court for a decision before the Alaska Legislature convenes on Jan. 17.