The De-Platformer’s Dilemma—John Eastman Edition (Guest Post By 1L Milo Ratner)
In a 2008 paper titled “Conspiracy Theories,” Cass R. Sunstein and Adrien Vermeule described the key dilemma involved in a government responding to a conspiracy theory. As they put it, “Ignoring the theory allows its proponents to draw ominous inferences from the government’s silence,” but “to rebut the theory may be to legitimate it.” This is fairly intuitive: if your belief is that the government is covering something up, any denial is just more proof to you of the coverup. Sunstein and Vermeule propose “cognitive infiltration” as a solution to this dilemma. Their idea is in many ways as dystopian as it sounds: the government would send in agents to the breeding grounds of conspiracy theories (in the modern day, perhaps 4Chan or Truth Social) where the agents would raise doubts and reveal logical holes in the freshly coalescing theories.
Sunstein and Vermeule were primarily concerned about conspiracy theories surrounding the September 11th terrorist attacks from 7 years prior. They cited studies suggesting that 16% of Americas believed there were bombs planted in the Twin Towers. Perhaps more concerningly, 78% of respondents in seven Muslim countries believed there was no Arab involvement in the attacks. Given 9/11 kicked off the “war on terror,” this statistic suggests that large portions of the invaded countries believed the invasion occurred entirely without provocation (inadequacy or misdirection of the provocation aside.) Sunstein and Vermeule argued that the closed and oppressive nature of the governments in the responding countries led to a justified distrust of official sources.
In November 2020, incumbent Donald J. Trump lost the election for President of the United States of America. In December 2020, John Eastman, former dean of Chapman University School of Law (later renamed after a large donation), wrote a memo where he suggested that then Vice President Mike Pence could simply choose not to count the votes in seven states that were disputed as fraudulent (including Arizona – this author’s home state), allowing Trump to be elected. In a legendary exhibition of legal ethics, Eastman then wrote:
“The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session or from the Court.”
Pence refused. On January 6, 2021, Eastman spoke about his memo at the “Save America” rally. That same day, protestors outside the capitol building chanted “Hang Mike Pence!” A mob stormed the capitol.
On January 23, 2021, Eastman claimed on CNN that “antifa” was involved in organizing the rally. Eastman continued to claim the election was stolen and attempted to have states “de-certify” their results. Eastman has been disbarred by California and was indicted in two separate criminal cases. Eastman has claimed that the proceedings against him were again part of an election-stealing conspiracy, remarking to an interviewer:
“If they keep us tied up, spending our resources on defense against these things, then those are resources and time and talent that cannot be deployed in furthering elections for people who are sensible and want to get our country back on track.”
On April 16, 2026—one day after Eastman was disbarred by the California Supreme Court—the Cornell Law School student chapter of the Federalist Society hosted Eastman for a talk about “politicization of prosecution.” Eastman talked for an hour or so about what he described as “lawfare,” the use of the legal system to oppress political opposition. Shockingly, he made no mention of the current administration’s use of blatant political prosecution against, among others, Trump-elevated Federal Reserve Chair Jerome Powell. Eastman portrayed his role in the January 6 riot as simply “defending a client” but continued to assert that the election was stolen, citing voting numbers in Pennsylvania among other discredited theories. Eastman is not the first conspiracy theorist to speak to the Cornell Fed Soc chapter. In September last year, the organization hosted Geoff Shepard, whose talk was entitled “The Watergate Setup: Lawfare & The Plot Against the President” (no doubt an attempt to rehabilitate President Nixon’s image in light of Trump.)
Cornell University, and more specifically Cornell Law School, has been placed into a dilemma much like Sunstein and Vermeule described in 2008. Cornell has potentially legitimized Eastman’s conspiracy theories by providing them with a platform and associating them with an Ivy League name. Cornell, as a private organization, is not legally bound by the First Amendment (ignoring the ever-present threat of politically motivated funding freezes.) That said, Cornell has voluntarily made “free and open inquiry and expression . . . even of ideas some may consider wrong or offensive” one of its core values. But that does not mean that anybody and everybody receives an official invitation. No one would expect the astronomy department to host talks about young earth creationism.
Hard problems arise when student organizations issue invitations to the likes of Eastman (who holds offensive views on other issues beyond the 2020 election). Should Cornell have made an exception to its free-and-open-inquiry policy by excluding Eastman? Doing so would have risked feeding the prominent conservative theory of liberal censorship and indoctrination at our universities. It would also risk Cornell’s relationship with the highly-funded national Federalist Society (in 2024, Fed Soc spent $27.7 million, in contrast with $4.73 and $1.1 million from the American Constitution Society and National Lawyers Guild respectively.) Cornell’s ultimate obligation ought to be to its students’ education. An apparently-political decision to interfere with a student organization may undermine that goal. After all, hearing legitimate conservative academic thought, especially in a realm as subjective and politically charged as law, is a tangible and perspective-expanding benefit to students. Any curation by Cornell risks calling into question the institution’s impartiality. Although that ship may have sailed for the present, I have naïve hope for the future. Cornell ultimately ought not to act, even against dangerous and democracy-threatening conspiracy theories. A conspiracy theory like Eastman’s will only further itself with outside opposition.
Sunstein and Vermeule might be right: cognitive infiltration may be the solution to the theories and views promoted by Eastman and others (such as another recent guest of Cornell’s Fed Soc chapter, currently suspended University of Pennsylvania Law Professor Amy Wax). But cognitive infiltration where, and by whom? Any attempts by anyone on the left of the political spectrum to refute Eastman would surely be fruitless. A politically-charged debate of any kind would only encourage tribalism and picking sides: exactly the type of behavior that would lead an otherwise rational center-right conservative to be willing to adopt a conspiracy theory like Eastman’s. Instead, there has to be an internal reform. The national Federalist Society (which provides financial and logistical support for its favored speakers) and individual law school student chapters themselves must refuse to act as a conduit for conspiracy theories. And this in turn requires action by students.
Here, finally, is where it may be worth listening to a first-year law student who is surrounded by the petty politics of my peers. Reformation of Fed Soc away from conspiracy and into legitimate conservative legal scholarship and philosophy is not an unachievable task. At least judging by the membership of the Cornell chapter, the Federalist Society, like the Republican Party, contains a diverse group of people with a diverse set of views. Some view themselves as moderates who like to hear both sides; some are opportunists taking advantage of potential prestigious career benefits; and many are zealous advocates of conservative values (be they economic or religious). There’s only one thing all of them have in common: their identity as a member of the Federalist Society.
If that identity becomes synonymous with support for Donald Trump and his movement, then like the people in the majority-Muslim countries who preferred to believe that the United States blew up its own buildings and citizens than be associated with terrorism, Fed Soc students may, rather than reject their identity, embrace the absurd conspiracy theory that the current President continues to promote even despite his later election. But it doesn’t have to be part of that identity. The Federalist Society could bring speakers like Stephanos Bibas, Gregory Jacob, Liz Cheney, or other conservatives who have worked to preserve the legitimacy of our election system. If the students involved desire it, the Federalist Society could be among the most powerful democracy-preserving institutions in America. It’s up to them to reject conspiracy theories like those pedaled by Eastman.
-- Milo Ratner is a first-year JD student at Cornell Law School