WASHINGTON—The professional ethics charges against former Assistant Attorney General Jeffrey Clark are “absolutely unheard of,” Mr. Clark’s attorney argued in his disciplinary trial, which began on March 26.
District of Columbia Bar authorities charged Mr. Clark with “attempted dishonesty” and “attempted serious interference with the administration of justice” over his efforts to challenge the 2020 presidential election. He faces sanctions and potential disbarment.
The charges stem from a draft letter written by Mr. Clark on Dec. 28, 2020, about alleged election irregularities in Georgia’s 2020 presidential race. The letter, marked as “proof of concept,” was ultimately rejected by President Donald Trump and his advisers. But it was later leaked to The New York Times after President Joe Biden was sworn into office.
District of Columbia Bar disciplinary counsel Hamilton Fox III in his opening statement on March 26 contended that Mr. Clark engaged in coercion because President Trump intended to fire acting Attorney General Jeffrey Rosen and replace him with Mr. Clark if the letter wasn’t sent to Georgia election officials. President Trump didn’t ultimately take that course of action.
Mr. Fox also alleged that Mr. Clark’s maneuvering “was essentially a coup of the Department of Justice,” a characterization to which Mr. Clark’s counsel immediately objected.
Mr. Clark’s attorney, Harry MacDougald, argued that the charges were unfounded as the letter was merely a drafted proposal.
“No one has ever been charged by the D.C. Bar with attempted dishonesty in a draft letter that recommended a change in policy or position where that document was not approved, and never even left the office,” he said in his opening statement before a three-judge panel of District of Columbia Bar attorneys.
The controversial draft letter stated that the Department of Justice (DOJ) was “investigating various irregularities” related to the 2020 presidential election in Georgia. It also said the DOJ believed that two slates of electors, one for President Biden and the other in favor of President Trump, had already met and cast votes for their respective candidates and sent these votes to Vice President Mike Pence.
‘The Bureaucracy Will Eat You Alive’
Former DOJ official Richard Donoghue, a witness for the District of Columbia Bar disciplinary office who was involved in discussions about the letter, said he and Mr. Rosen felt the draft could not be published because it contained false information about the DOJ’s position. Mr. Donoghue also testified that Mr. Clark violated the DOJ’s White House contact policy by speaking to President Trump twice without notifying his superiors.Mr. Clark and Mr. Donoghue had been at odds regarding the DOJ’s investigation of possible voter fraud in Georgia following the 2020 election, Mr. Donoghue testified. He said that although some instances of fraud were detected, there were not enough to swing the state’s electors toward President Trump, despite that the state went to President Biden by the narrow margin of a little more than 12,000 votes.
Mr. Donoghue said that he thought that a large-scale investigation of voter irregularities was outside the scope of the DOJ’s work, making a legal distinction between the terms “irregularities” and “fraud.”
He also bristled at Mr. Clark’s investigative efforts in this area, saying, “I didn’t see a reason why he should be getting any briefing, much less a briefing from the DNI [Director of National Intelligence John Ratcliffe] himself.”
The former DOJ official also testified that upon learning that Mr. Clark could be made attorney general, he and Mr. Rosen moved to rally support from other government officials, hoping that the threat of mass resignations might force President Trump to reconsider.
Mr. Donoghue said that this is exactly what happened during a heated Oval Office meeting on Jan. 3, 2021: President Trump decided not to send the letter or replace Mr. Rosen with Mr. Clark, saying the move would “not be worth the breakage.” President Trump also said to Mr. Clark, “The bureaucracy will eat you alive,” according to Mr. Donoghue.
Former deputy White House counsel Patrick Philbin, another witness for the District of Columbia Bar disciplinary counsel, testified that he urged Mr. Clark “as a friend” not to pursue the publication of the letter or the replacement of Mr. Rosen as attorney general. He also said that when he warned Mr. Clark of the possibility of nationwide riots if the election results were overturned, Mr. Clark responded, “That’s what the Insurrection Act is for.”
Mr. Philbin said there was great internal disagreement over what had been done, and what should be done, about the irregularity of Georgia elections. He also said he believed that Mr. Clark had acted with sincerity. Mr. Philbin said, “He felt essentially that he had a duty, where you think something wrong is happening ... and he was the one who was sort of put on the spot and had to do something about it.”
During cross-examination of the witnesses, Mr. MacDougald repeatedly emphasized the novelty of the charges, asking Mr. Philbin and Mr. Donoghue whether they were aware of anyone in their experience being disciplined by the bar for an unsent draft letter. Both witnesses said they were aware of no such case.
When called to the stand by Mr. Fox on March 27, Mr. Clark invoked his rights under the Fifth Amendment—which protects a person against self-incrimination—25 times.
