As detailed in the Senate report, Trump started the meeting by turning to Rosen and brazenly saying, “One thing we know is you, Rosen, aren’t going to do anything to overturn the election.”
Trump then said he wanted Clark, a little-known official, to replace Rosen as acting attorney general. Clark was willing to do what Rosen was not. Clark was willing to send a letter to officials in Georgia, and in other swing states won by Joe Biden, falsely claiming that the Justice Department had noticed election irregularities. The letters would also call on these states to convene a special session of the legislature.
Besides Clark, there were six other lawyers from the Justice Department and White House at the meeting. All six said they would resign if Trump forced Rosen out and replaced him with the unqualified Clark. Clark alone kept advocating that Trump should make him the acting attorney general.
Attorney General Merrick Garland has waived questions of privilege so that senior Trump DOJ officials could testify before congressional committees investigating what happened at the department in the weeks between the November election and the Jan. 6 insurrection. Rosen and Donoghue voluntarily testified to the Senate Judiciary Committee; Clark did not. Republican Judiciary Committee members have blocked Clark from being called as a witness.
However, the bipartisan House select committee investigating the Jan. 6 insurrection does have subpoena power and should compel Clark to testify.
Sen. Sheldon Whitehouse of Rhode Island, a Judiciary Committee member and Democrat, put the question bluntly in a press release.
There is also the question of what role Republican Rep. Scott Perry of Pennsylvania played. Perry reportedly connected Clark with Trump.
Senate Judiciary Committee chairman Dick Durbin of Illinois urged the Office of Disciplinary Counsel of the District of Columbia Court of Appeals to open an investigation into Clark’s actions.
“I respectfully request that the office of Disciplinary Counsel open an investigation to determine whether Mr. Clark, who is a member of the D.C. Bar, violated applicable D.C. Rules of Professional Conduct and should be subject to disciplinary action.”
Durbin specifically alleges that as a DOJ official, Clark violated “at least four” prohibitions in the D.C. bar’s code of conduct. These include pushing the “DOJ to take official action based on verifiable falsehoods” and “improperly using DOJ law enforcement powers on behalf of a political candidate to overturn the election results.”
Durbin concluded by stating that Clark must face consequences for actions that “undermine the integrity of our justice system and erode public confidence in it.”
He also noted that the committee had only issued an interim report, and was withholding potential findings and recommendations about criminal culpability until its investigation is complete.
Separately, a group of legal heavyweights asked the same disciplinary panel to investigate Clark in a 15-page ethics complaint. Their complaint was announced last Tuesday, two days before the Senate Judiciary Committee released its interim report.
The complaint alleges that Clark should face disciplinary action because what he did as a DOJ official was even more egregious than that of pro-Trump lawyers like Rudy Giuliani and Sidney Powell, who have already faced disciplinary sanctions for filing baseless court challenges seeking to overturn the election results.
According to The Hill, the 32 signatories to the complaint, who call themselves Lawyers Defending American Democracy, include former DOJ officials, past heads of the D.C. bar, and distinguished legal scholars. The group has previously filed complaints against Giuliani, former Attorney General William Barr and Texas Attorney General Ken Paxton.
Last week, another bipartisan group of lawyers, the States United Democracy Center, asked the California bar to investigate another prominent conservative lawyer, John Eastman. Eastman developed and promoted a theory that Vice President Mike Pence could reject Joe Biden’s victory when Congress counted electoral votes on Jan. 6.
Eastman spoke at the Jan. 6 “Stop the Steal” rally at the Ellipse just before the storming of the Capitol. He shared the stage with Giuliani, espousing assorted conspiracy theories about dead people voting and voting machines flipping votes.
The letter calling for an investigation into Eastman was signed by law professors, retired state and federal judges, state attorney generals, U.S. attorneys, and DOJ officials. Additionally, two former governors signed on: Republican Christine Todd Whitman of New Jersey, and Democrat Steve Bullock of Montana.
In August, Citizens for Responsibility and Ethics in Government actually filed a criminal complaint against Clark with the Department of Justice. The group had previously filed criminal complaints against Trump and his chief of staff Mark Meadows.
“Jeffrey Clark appears to have taken significant actions to further Donald Trump’s and Mark Meadows’s attempt to overturn the result of the 2020 election, a campaign which fundamentally undercut the principles of democratic elections and peaceful transition of power upon which our constitutional system is based,” said CREW President Noah Bookbinder. “It is impossible to overstate the seriousness of these potential offenses, and we respectfully request the DOJ open an investigation into Jeffrey Clark’s potentially criminal behavior.”
Under the U.S. Code, it is against the law for two or more people to “conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States,” including the right to vote for federal offices and the right to have one’s vote fairly counted.”
Unlike Sidney Powell and Lin Wood, who might easily be dismissed as crackpots, Clark and Eastman are both established figures in the conservative legal movement. They’ve both led influential practice groups within the Federalist Society, and Eastman remains a senior fellow at the far-right Claremont Institute.
As for Clark, he has suffered no consequences for plotting to overturn the 2020 presidential election—yet.
You’d think Clark would be toxic to any self-respecting law firm, but in July, he landed a cushy job created for him at the Orwellian-named New Civil Liberties Alliance (NCLA), a legal firm founded in 2017 by conservative legal scholar Philip Hamburger. Clark is now the group’s Chief of Litigation and Director of Strategy. The group’s biggest donor is the Charles G. Koch Foundation, which contributed $2 million to the NCLA in 2017-2018.
NCLA’s anouncement of Clark’s appointment was something to behold; it promised that Clark “will advance the firm’s efforts against the use of unlawful power by federal and state agencies in ways that violate Americans’ fundamental rights. By restoring constitutional constraints on the Administrative State, NCLA aims to protect everyone’s civil liberties and ensure that only accountable, elected officials make the decisions that affect people’s lives and livelihoods.”
The firm’s real intent is litigating against federal or state regulations that conservatives don’t like. The firm’s current focus? Its opposition to vaccine mandates and other COVID-19 regulations “imposed by Executive Decree.”
Just look at some of the recent cases that the NCLA is involved in:
— Class-action lawsuits against Michigan State University and George Mason University, for imposing COVID-19 vaccine mandates and threatening employees with disciplinary action. The firm is representing employees who claim they have natural immunity to COVID-19 after recovering from the virus, and do not want to be forced to take the vaccine as a condition of employment.
— An amici curiae brief in federal court in a lawsuit seeking the invalidation of the eviction moratorium order issued by the Centers for Disease Control and Prevention.
The law firm also has said it is ready to take action if New York or other states introduce so-called “vaccine passports.”
Before the pandemic, NCLA filed a lawsuit challenging the federal ban on bump stocks—those devices specially designed to make it easier to fire semi-automatic firearms, making it possible to fire 400 to 600 rounds per minute. The ban was imposed following the 2017 Las Vegas mass shooting, which left 60 people dead and 867 injured; that gunman had fitted bump stocks to his weapons.
The firm has also filed lawsuits against federal agencies such as the EPA, challenging regulations to protect the environment as the climate crisis worsens. That’s the area of Clark’s real expertise. When he joined the DOJ in 2018, his role was Assistant Attorney General of the Environment and Natural Resources Division; his mission was to weaken federal environmental protections and enable polluters to disregard regulations that had been in place for years.
With the Federalist Society, Clark also chaired its environmental law and property rights practice group.
Before his last stint at DOJ, Clark was a partner at the powerhouse corporate law firm Kirkland & Ellis, where he focused on environmental law. While at the firm, Clark also represented pro bono the Miami relatives of 5-year-old Elián González, the Cuban boy rescued at sea off the Florida coast in 1999 after his mother drowned in a storm. Ultimately, the boy was ordered returned to the custody of his father in Cuba.
Former federal prosecutor Barbara McQuade said on MSNBC that Clark should be very concerned with being indicted for criminal conspiracy for his actions on behalf of Trump. Perhaps NCLA should explain why it created a senior position for a disgraced lawyer who the Senate Judiciary Committee has implicated as abetting a failed coup attempt.
Clark must be compelled to testify before the House Select Committee investigating the Jan. 6 insurrection. He should be disbarred and prevented from practicing law in Washington, D.C., and he should be indicted and put on trial for criminal conspiracy.
To borrow a phrase from across the aisle: Lock him up!