The Man Behind Donald Trump’s Push To End Birthright Citizenship

Long before John Eastman helped devise Donald Trump’s bid to overturn the 2020 election, he had another pet cause: ending birthright citizenship.

The idea was once relegated to obscure articles in right-wing journals and little-noticed debates before conservative groups. But Trump ushered it into the limelight on his first day back in office last year by issuing an executive order purporting to upend the well-established understanding that virtually everyone born on U.S. soil gets American citizenship.

Now, Eastman is about to realize a decades-long dream: getting the Supreme Court to consider his radical theory that the Constitution doesn’t automatically confer citizenship on those born in the U.S. The justices are set to hear oral arguments Wednesday over the constitutionality of Trump’s policy.

Yet, when Trump signed his order on the subject last year, he made no mention of the former law school dean and Supreme Court clerk’s long advocacy for the cause. And while the Justice Department’s public briefs closely track Eastman’s arguments, they don’t cite his writings or acknowledge his role as the theory’s leading evangelist.

“This is his issue,” said Linda Chavez, a longtime conservative activist and senior Reagan White House official who has sparred publicly with Eastman on the subject. “I’ve known John forever and this has been a bee in his bonnet for as long as I’ve known him.”

For his part, Eastman says he has no hard feelings about his work not being cited in the Trump administration’s formal case.

“That doesn't trouble me,” Eastman said. “Remember, Ronald Reagan used to have a sign on his desk that there’s a lot you can get done in this town if you don't care who gets credit for it.”

‘The brain trust’

Eastman has been advancing his fringe interpretation of the 14th Amendment since 2005, racking up more than 100 op-eds, interviews, law review articles, debates, speeches and legislative hearings.

“John is probably the brain trust,” said Ediberto Roman, a Florida International University law professor who’s debated Eastman.

The vast majority of constitutional scholars — and the weight of legal precedent — reject his view of the issue. The Constitution’s 14th Amendment guarantees citizenship to “all persons born … in the United States, and subject to the jurisdiction thereof.” The Supreme Court ruled in 1898 that means a child born in the U.S. to foreign parents living in California acquired U.S. citizenship at birth.

However, Eastman and the administration argue that precedent only covers children of foreigners living permanently in the U.S., and that broader interpretations over the past 128 years that it guaranteed citizenship to almost anyone born on U.S. soil were mistaken.

Asked by POLITICO whether he’d helped craft Trump’s birthright-citizenship executive order or the arguments being made to defend it, Eastman demurred.

“I don't answer that question,” Eastman said. “I never disclose what kind of communications I have and I don't deny that they existed.”

The Justice Department declined to comment on Eastman’s role. A spokesperson for the White House did not respond to a request for comment.

However, Eastman wasn’t bashful about saying that he’s a big fan of Trump’s bold move on the issue.

“I think the position that is reflected in Trump's recent executive order is very solidly supported by the principles of the American founding and then the legislative history of the adoption of the 14th Amendment,” Eastman said.

‘He learned a lesson’

Eastman told POLITICO he recalls first digging into the birthright citizenship issue sometime in the 1990s, when there was bipartisan talk about reining in the practice. He dug into it in greater depth after the Sept. 11, 2001 terrorist attacks, when the Supreme Court ruled that a fighter captured in Afghanistan and later discovered to have been born in the U.S. must be able to challenge his detention. Eastman filed a brief urging the court to rule that the man wasn’t a citizen at all.

For years after that, Eastman faced off in debates on the issue, arguing against some of the leading lights of the conservative legal movement, such as John Yoo, now a Berkeley law professor, and James Ho, whom Trump appointed to the 5th Circuit Court of Appeals.

“The Federalist Society … would basically pay us to go around the country and meet at different Federalist Society chapters and debate,” said Margaret Stock, an immigration lawyer and former society member who faced off with Eastman. “John Eastman was basically the point person on this whole theory.”

Trump had floated the idea of an executive order on birthright citizenship in his first term, and former Attorney General William Barr testified to the House Jan. 6 Committee that Eastman was the driving force behind that push.

Barr said Eastman ultimately agreed that an executive order on the subject “wouldn't really work legally and practically.” Barr declined to comment for this story, but has told associates that Eastman agreed at the time that the Supreme Court was unlikely to uphold the plan.

Eastman told POLITICO that Barr’s account was false, and said the 2018 effort was bogged down by “a very recalcitrant administrative state” and “typical bureaucratic delay tactics.”

“What's different now is [Trump] learned a lesson in that first term and said, ‘We're not going to play those games any more,’” the conservative attorney said.

A tough sell

Eastman’s theory of the 14th Amendment became impossible to ignore once Trump returned to the White House. But it has so far found no footing in the courts.

Four federal judges blocked Trump’s order from taking effect. One said the Supreme Court has “resoundingly rejected” the interpretation of the 14th Amendment that Trump and Eastman have advanced. Another judge called it “blatantly unconstitutional.” Two federal appeals courts agreed.

And just three years ago, Justice Clarence Thomas, unambiguously declared in a concurring opinion in the Harvard affirmative action case that the Constitution proclaims that “all persons born in the United States are citizens, entitled to the privileges or immunities of citizenship.”

Eastman—who served as a law clerk to Thomas—dismisses such passing statements, noting that birthright citizenship arguments weren’t presented or contested in that case.

Fraying alliances

While Eastman has appeared loyal to Trump in recent years, Trump and his advisers haven’t always reciprocated. He called himself an attorney for the Trump campaign, but the retainer agreement the campaign sent him after the 2020 election was unsigned. In addition, he never succeeded in getting paid by the campaign.

And Eastman is still battling the fallout from the 2020 election. He helped concoct the theory that Trump could cling to power by having Vice President Mike Pence refuse to count some states’ electoral votes. That didn’t persuade Pence, but did score Eastman a speaking role at Trump’s Jan. 6, 2021 rally on the Ellipse, where Eastman aired unproven claims of election fraud.

He subsequently lost his professorship at Chapman University and has been suspended from practicing law in California. He’s appealing a decision calling for his permanent disbarment in that state.

A federal judge found it was likely that Eastman and Trump “dishonestly conspired to obstruct” Congress’ count of the electoral votes in 2021, and he was indicted in Georgia and Arizona. The Georgia case was eventually dropped; Arizona Attorney General Kris Mayes is seeking to revive the Arizona prosecution.

Eastman sought a pardon in the days after Jan. 6, but did not receive one. Trump did, however, pardon Eastman and dozens of others last fall as part of a sweeping clemency aimed at those who aided his bid to overturn the 2020 election. And at Mar-a-Lago last year, Trump showed up when Eastman screened a documentary slamming the unfairness of the disbarment proceedings against him.

“I’m a big fan of John Eastman,” Trump said as he introduced the film. “He was right."