EDITORIAL: The danger at the heart of the Eastman lawsuit

There’s a constitutional crisis brewing in Alaska’s courts. It revolves around a provision in Alaska’s constitution known as the disloyalty clause, which reads: “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.” After the Capitol riots on Jan. 6, 2021, it became known that Rep. David Eastman is a life member of the Oath Keepers, a fringe right-wing group with several members who participated in the violence that day — and, prosecutors argue, were attempting to overthrow the government by force.

Let’s make one thing perfectly clear: Throughout his legislative career, Rep. Eastman has been ineffective, unpleasant and hateful. He has wasted massive amounts of precious time in legislative sessions grandstanding, bickering with the leadership of committees and the House, and offering frivolous amendments often drafted with little apparent purpose other than to bog down the lawmaking process. He has made abhorrent statements about the motivations of women in rural communities who make the agonizing choice to get an abortion. He has made hyperbolic, counterfactual comparisons that reveal a bizarre fixation with Nazi Germany and the Holocaust. He has abjectly failed to provide effective representation for his constituents, to the point that he was almost singlehandedly responsible for the formation of a bipartisan majority caucus despite Republicans holding more than half the seats in the House — several members of his party recognized that it would be more productive to work with Democrats than try to hold together a caucus with Eastman.

Put simply, there is little reason for voters in Eastman’s district to reelect him to another term — but they likely will, judging by the results of the primary election. And it’s entirely possible that, shortly after the election, Eastman will be disqualified from serving the term he was elected to because of a lawsuit over his Oath Keepers membership. That would likely be a positive for the comity of the Alaska State House, but it would set a dangerous precedent that would undermine foundational principles of American democracy. Being truly faithful to democratic principles means realizing that Rep. Eastman is free to have terrible ideas and the people of his district — and of any district in the state — must be free to pick their elected representative.

The issue is that the Alaska Constitution’s disloyalty clause runs squarely against the First Amendment to the U.S. Constitution’s protections of freedom of association. Based on all information publicly available, Eastman’s ties to the Oath Keepers appear tenuous — although he donated to the organization at some point, no evidence has been brought forward showing that he was in communication with the members of the group perpetrating violence in the Capitol, nor has any allegation been made that he has committed any crime. If Eastman is found to be in violation of the disloyalty clause — unless some new bombshell emerges that establishes he had a role in the events on Jan. 6 — it will be solely because he is a member of the Oath Keepers group. And that’s a dangerous road to go down.

It’s no coincidence that the Alaska Constitution’s disloyalty clause was included near the height of the Red Scare in the mid-1950s, when membership in the Communist Party was seen as sufficient justification for investigation by the FBI, blacklists in Hollywood and Star Chamber-esque hearings by Sen. Joe McCarthy. With the benefit of perspective that the intervening years have given us, it’s clear that simple membership in a group — even a group on the political fringe — wasn’t sufficient justification for the abuses perpetrated.

Put another way, political pendulums swing in both directions. Were Eastman to be removed from office for his tenuous connection to the Oath Keepers, it would open the door to scenarios such as challenges against supporters of social movements such as Black Lives Matter because of the anti-government statements made by fringe elements who are also members. The insensibility of such a precedent should be apparent to those at all points on the political spectrum.

There are some narrow circumstances that justify the removal of an elected official — generally, the “high crimes and misdemeanors” standard of presidential impeachment is a good guideline. Especially when it comes to removal by the judiciary, the justification should not fall short of the elected official being convicted of a crime. Any lower standard would amount to a disenfranchisement of the voters who chose that person as their representative.

Rep. David Eastman is a bad representative, and he has demonstrated so during his years in the Legislature. But it shouldn’t be the court’s place to bar him from office when he hasn’t committed a crime. That’s a task that lies in the hands of his district’s voters — and, despite the disloyalty clause, the court shouldn’t be in a position to overrule their decision.