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The Show Trial of Jeffrey Clark
Soviet show trials were not just sham proceedings. The charges were often purposefully absurd, as if to communicate that it wasn’t about justice, or even retribution, just a naked demonstration of the party’s power. Bereft of any real law, punctilious attention to procedure gave the trials a phantasmagorical aspect, both farcical and terrorizing.
Something similar has been going in the District of Columbia’s four-year-long persecution of Jeffrey Bossert Clark, currently one of the most senior attorneys in the Trump White House and director of the Office of Information and Regulatory Affairs, the regulatory nerve center of the administration. He is accused of professional misconduct for recommendations he made in the wake of the 2020 election, when he was among the highest-ranking officials at the Justice Department.
Of course the District of Columbia won’t sentence Clark to be shot — the inevitable sentence in a Soviet show trial. The district merely wants to revoke his license to practice law, his profession of 30 years, on the recommendation of the D.C. Board of Professional Responsibility. But in other respects — particularly in how petty and nonsensical the charges against him are — this is a pure show trial.
The matter is now in its final stages before the D.C. Court of Appeals (the highest local court in D.C.) and could be before the Supreme Court before the end of the year.
Persisting While Republican
In the frenetic weeks after the 2020 election, there were multiple sworn allegations of election irregularities in Georgia and a handful of other battleground states. Some of these involved failures to verify signatures on large numbers of mail-in ballots, the use of which had become dangerously promiscuous in the course of 2020, driven by the pandemic lockdowns.
As the board notes in its 104-page opinion, the Justice Department was looking into potential cases of criminal election fraud and “did not run to ground all the irregularities brought forward, especially those related to alleged violation of state election rules, for example, whether election workers in Fulton County, Georgia conducted verifications of the signatures on absentee ballots.”
With time running out to correct any serious breach of election integrity, Clark prepared a draft legal opinion that proposed launching additional federal investigations and suggested that state legislatures could convene in special sessions to consider evidence of election irregularities and potentially revise their election certifications. The step-by-step process was laid out in a “proof of concept” draft letter that Clark proposed to send to the legislatures of several states, starting with Georgia.
By email, Clark circulated this notional letter to the acting attorney general, Jeffrey Rosen, and his deputy, Richard Donoghue, for deliberation, proposing that all three sign it. The letter contained the following, by way of introduction: “The Department of Justice is investigating various irregularities in the 2020 election for President of the United States … We have identified significant concerns that may have impacted the outcome of the election in multiple States.”
Weeks earlier, Attorney General William Barr (who had since resigned) had instructed Justice Department officials to investigate allegations of election irregularities. Accordingly, Rosen and Donoghue, among others, were reviewing allegations on a daily basis. They were aware that significant concerns had been raised. But because they had not seen anything that might impact the outcome of the election, they refused to sign Clark’s proposed letter.
Nevertheless, he persisted.
After the exchange of emails, Clark kept trying to convince his colleagues—and the president to authorize the letter in some form and if necessary to put him in charge of the department as acting attorney general to see it done. The president ultimately rejected his proposal, and Clark dropped the matter. The “proof of concept” letter was never sent.
That should have been the end of the story. But the D.C. establishment could not abide Clark’s brazen pattern of persisting-while-Republican. The exchange of emails was illegally leaked to the New York Times and subsequently swept up in Congress’s Jan. 6 dragnet—despite being protected from disclosure by a host of legal privileges and prohibitions. That eventually led Sen. Dick Durbin to refer the matter to the D.C. bar for disciplinary action.
Thought Crime Before the D.C. Bar
With time running out before Congress’s certification of the election, scheduled for Jan. 6, some of the Georgia courts entertaining complaints of significant election law violations had not even scheduled them for a hearing. Clark thought that such complaints should be run to ground quickly, so time was of the essence.
Some of the complaints filed in the wake of the 2020 election resulted in disciplinary proceedings against the attorneys involved because of “vexatious litigation,” sloppiness, or questionable factual assertions about the conduct of the election. Clark’s “proof of concept” letter raised no such problem. The board points to nothing in Clark’s five-page legal analysis that it even thinks was wrong as a matter of law.
In substance, the draft letter explained the crucial (though largely unseen) responsibilities of state legislatures within America’s arcane system of presidential elections. It devoted several pages to arguing why, in the original constitutional scheme, a state legislature could call itself into session to review and potentially replace the slate of electors, without action by the governor. This was an important tangent given that Gov. Brian Kemp had already certified the state’s election for Biden and had rejected calls to revisit the certification.
A special session of the Georgia legislature would have added a whole new dimension of conflict and controversy to an election that already had far too much of both. But Clark is not facing disbarment for any of that. In fact, the legal basis of the charge against him has almost nothing to do with the 2020 election at all.
Instead, the board’s recommendation that Clark be disbarred is based on its conclusion that Clark was guilty of “attempted dishonesty.”
“What’s that?” you ask. Good question, and we shall get to it presently. But first let’s look at what Clark “attempted to say” that, according to the board, would have been intentionally (or at least “recklessly”) dishonest, had he succeeded in saying it. The entire show trial comes down to the following fragment of the second sentence in Clark’s draft letter: “We have identified significant concerns that may have impacted the outcome of the election.”
Here is what the board has to say about that:
On the merits, we conclude that Disciplinary Counsel proved by clear and convincing evidence that Respondent attempted to make intentionally false statements when he continued to advocate that the Justice Department issue a letter containing falsehoods. Although the hearing witnesses agreed that Respondent had sincere personal concerns about the integrity of the 2020 election, they also agreed that the Justice Department had not identified potentially outcome-determinative issues in Georgia or other states. Respondent knew that because Messrs. Rosen and Donoghue told him so. Thus, Respondent’s conduct constituted an attempt to make intentionally false statements about the results of the Justice Department’s investigation.
It’s worth unpacking this carefully, if only to marvel at how extravagantly ridiculous it is.
First of all, there were no definitive “results of the Justice Department’s investigation” because the allegations were still coming in, and the department was struggling to keep up with them. In fact, the department was only trying to investigate the ones that seemed like they could lead to criminal cases, which did not include more general violations of state election laws, as in the allegations concerning Fulton County. The most Rosen and Donoghue could say was that, at that point, they personally knew of no DOJ investigations that seemed to have uncovered anything potentially outcome-determinative.
More important, the draft letter was not an “attempted statement.” It was a deliberative decision document. It was being circulated in appropriate channels for the purpose of seeking deliberation and decision as to its contents, the standard process by which agencies develop policy.
In other words, if Rosen and Donoghue had agreed to sign the proposed letter, the sentence fragment that the board has its panties in a twist over would have become true ipso facto, regardless of whether the “concerns” turned out to be valid or not, as a departmental acknowledgment of the potential seriousness of certain allegations. The “false statement” that Clark supposedly “attempted to make” would have been true if it had been made in accordance with the authorization that Clark was seeking.
And if you have never even heard of such a crime as “attempted dishonesty,” that’s because it doesn’t exist. As the board sheepishly admits, no lawyer in the history of the District of Columbia has ever been charged with “attempted dishonesty.” But Gulliver’s size didn’t stop the Lilliputians from devising a clever way to subdue him, and Clark’s stature won’t stop the board.
Now, accusing someone of attempting to do something that he decided not to do raises somewhat of a Gordian knot, and the board implicitly acknowledges the problem. Delving into the district’s endless trove of criminal cases, the board quotes the D.C. Court of Appeals: “To prove an attempt, the government is not required to prove more than an overt act done with the intent to commit a crime, which, except for some interference, would have resulted in the commission of the crime.”
Of course, if the board has to prove interference, then its case entirely collapses, since Clark decided of his own volition not to tell this supposed falsehood. But the board points to other opinions of the D.C. Court of Appeals, to the effect that the perp can be charged if he took a “substantial step” toward completing the crime, if that step brought “the criminal venture forward to within dangerous proximity of the criminal end.”
Leave aside that Clark had no intention of misstating the department’s position, and that the supposed false statement he attempted to make would have been accurate if it had been made. Is it really true that in the District of Columbia you can lose your law license for taking a “substantial step” toward the telling of a lie that you decided not to tell?
Yes, answers the board, citing the case of Taylor v. United States, in which the D.C. Court of Appeals upheld the conviction of a common criminal who overdosed on heroin with a pistol in his belt and was charged, among other things, with “attempt” to carry a firearm without a license. In that case, it was not outside interference, but the perp’s own conduct, that resulted in the criminal enterprise not achieving fruition. Yay, we tied him up!
Interestingly, the “attempt to tell the lie” was not Clark’s attempt to get Rosen and Donoghue to sign the letter. According to the board, he found out that the assertion in the letter was a “lie” only when they told him so, in the course of explaining why they didn’t want to sign it.
It’s what he did next that really got him into trouble. He persisted. Here’s the board again:
“He continued to advocate that the Justice Department should send the letter after having been told that it contained misrepresentations. However, he never presented Messrs. Rosen and Donoghue with evidence that justified his view. Rosen and Donoghue repeatedly explained that based on the results of its investigation the Justice Department could not truthfully represent that it had found evidence of potentially outcome-determinative election issues.”
Almost every word of this is false. Clark was not told that the letter contained misrepresentations. Rosen and Donoghue just disagreed with it, and their opinion was no more authoritative than his, as the department had not formulated any position. And he did present them with evidence of significant concerns, including the recently released Ligon report on the failure to verify signatures on a large number of mail-in ballots, along with other sworn allegations that were still coming to light. And there were no conclusive “results of investigations,” because investigations were still ongoing.
One might say that opposition from President Donald Trump and others in the administration was the “interference” that prevented Clark from stating the supposed falsehood, but that also makes no sense. Clark could have sent the letter under his own signature, the only scenario in which the attempted false statement actually would have been false if made. But even then the remedy would have been removal by the president, not a disciplinary proceeding before the D.C. bar, because that would be like a local government punishing a federal official for failure to comply with a presidential directive.
Of course none of the half dozen wretched criminal cases cited by the board in its fantastical theory of “attempted dishonesty” has anything to do with Clark or his letter. The better precedent is Cuba, where dissidents face long prison sentences for the crime of “pre-criminal social dangerousness.”
Privilege Talking
There is an even more serious problem with the board’s recommendation: It is based on documents and testimony that should never have been admitted into evidence. Take this, for example:
“The matter came to a head in a Jan. 3, 2021, Oval Office meeting involving the President, Justice Department leadership, the White House Counsel and others from that office. Respondent [Clark] argued that he should be appointed Acting Attorney General, so that he could conduct nationwide investigations that would uncover outcome-determinative election issues in just a few days. The others at the meeting argued against his appointment, deriding his proposal as “completely unrealistic.” When the President mused that he had nothing to lose by letting Respondent “give it a shot,” the others in the meeting told him that there would be mass resignations of Justice Department leadership, the White House Counsel and other attorneys in that office. The President then decided that appointing Respondent to investigate election issues would not be worth ‘the breakage.’”
Any middling law student could flag this entire story as inadmissible hearsay, since as far as the record shows, the declarants are all alive and available for cross-examination.
But there is an even more compelling reason to exclude all of this from evidence: Both the Clark letter and the entire conversation in the Oval Office were and remain subject to both executive privilege and attorney-client privilege, among others. And the person who is entitled to those privileges, namely President Trump, has never waived them as to those conversations.
What should have led to multiple disciplinary proceedings is the abundant evidence of current or former officials violating attorney-client privilege. The board had no interest in making examples of them. Their persistence, even in violation of multiple actual rules, was politically correct.
The Sword of Damocles over Federal Officials
Executive privilege exists to protect the deliberations of high-ranking federal officials. If the board has its way, that privilege will henceforth be subordinate to professional disciplinary proceedings by local authorities. And this would inure to the advantage of Democrats almost exclusively, as attorneys in federal service tend to be licensed by the D.C. bar, which is basically a wholly owned subsidiary of the Democratic Party, while even in red states the bar tends to be heavily Democratic.
This is even worse, because the District of Columbia is not a state; it is a creature of Congress. So the proper way to view the board’s maneuver is as an intrusion by Congress, through the back door of a local government’s judicial branch into internal deliberations of the federal executive branch.
Former Attorney General Bill Barr recently filed an amicus brief in the D.C. Court of Appeals arguing forcefully against the effort to disbar Clark. Barr was no “election denier.” Just weeks before Clark sent his letter to Rosen and Donoghue, Barr resigned after an acrimonious dispute with President Trump over the election. Yet Barr joined with two other former attorneys general, Jeff Sessions and Michael Mukasey, to defend Clark from an attack that threatens vital executive prerogatives. As the three former AGs write in their brief:
“Having this Court or the Board (both of which are ultimately creatures of Congress) police the internal discussions of Executive Branch lawyers in federal buildings regarding federal matters while brandishing the power of disbarment would significantly impair those lawyers’ ability to carry out their duties. . . . Disbarring Mr. Clark for non-public, internal debate at the highest levels of the federal government would be an unprecedented intrusion into Executive Branch deliberations.”
Executive privilege is vital to the proper functioning of the executive branch. As the Supreme Court affirmed in U.S. v. Nixon, “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”
Imagine that you succeed Joe Biden as president, and I am the new White House counsel, your chief lawyer. In furtherance of my duties I draft an executive order for your signature that contains the following: “It is the policy of the United States . . . to eliminate the electric vehicle (EV) mandate.” I deliver this draft to the staff secretary with a covering “action memo” recommending that you sign the order. The staff secretary dutifully circulates the letter among other senior officials for deliberation.
At that point, Biden’s policies are still in effect, so the “policy of the United States” is still technically in favor of EV mandates. Hence, at the moment when I compose the drafts and transmit them to the staff secretary, the statement of policy contained therein is false.
But my proposed statement of policy might never come true. You, the president, might decide that you love Teslas so much that you want to force everyone to buy them, so you’re going to keep Biden’s EV mandate. If the board’s opinion is upheld, I could wake up on any morning after that and find that I have been charged with “attempt to tell a lie” by pea-brains who don’t even understand how the government works.
The Overriding Importance of Election Integrity
If you’re surprised to learn that the case against Clark has nothing to do with election interference or even the thought crime of “election denial,” you shouldn’t be. The Democrats who run the District of Columbia have no interest in punishing those things because they do them all the time.
In 2018, Stacey Abrams refused to concede the Georgia governor’s race, insisting it was “rigged” and “stolen” through voter suppression even after the claims were debunked. In 2016, Hillary Clinton called Donald Trump an “illegitimate president” who owed his victory to Russian collusion, and on January 6, 2017, eleven House Democrats objected to certifying his electors. In 2004, Democratic leaders alleged that Ohio’s vote had been rigged for George W. Bush, and their congressional allies successfully delayed certification. And in 2000, Democrats chanted “Hail to the Thief” in a massive effort to derail Florida’s official certification of the election for Bush, while 20 House members rose to object to Florida’s certified electors, sparking an actual constitutional crisis. In each case, Democratic attorneys easily satisfied the board’s definition of professional misconduct and yet none of them was even subjected to a disciplinary proceeding, much less disbarred.
The yearslong push to loosen election integrity rules has inflicted enormous damage on popular faith in our institutions. The pell-mell expansion of mail-in voting and eliminating the most basic voter-identity verification in many states had the predictable result of a tumultuous election that many saw as rigged and illegitimate. The solution is to reaffirm the importance of simple, verifiable election rules. That is arguably all Jeffrey Clark proposed: a lawful, transparent way for states operating under novel and tumultuous circumstances to verify their elections.
The board has managed a rare feat. Its case is not flawed in the way most flawed cases are flawed, in one or two key particulars. The astounding errors of legal reasoning and basic judgment at every step have made the entire proceeding both farcical and terrorizing. Maybe that was the point.
Originally published by National Review.
The post The Show Trial of Jeffrey Clark appeared first on The Daily Signal.
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