by Julie Kelly
In a 15-page letter obtained by American Greatness and prepared by his attorney, Jeffery Clark, the acting assistant attorney general for the Justice Department’s civil division in President Trump’s last few months of office, invoked executive privilege today before the January 6 Select Committee.
Clark, who has been under intense media scrutiny for attempting to address election illegalities in the 2020 presidential election, was subpoenaed by the committee on October 13. Committee chairman Bennie Thompson (D- Miss.) claimed Clark thwarted “the peaceful transfer of power.” Democrats on the Senate Intelligence Committee last month prepared a lengthy report accusing Clark of working with Donald Trump to overturn the election results.
Harry W. MacDougald, Clark’s lawyer, explained to Thompson why Clark would not testify. “Because former President Trump was properly entitled, while he held office, to the confidential advice of lawyers like Mr. Clark, Mr. Clark is subject to a sacred trust—one that is particularly vital to the constitutional separation of powers,” MacDougald wrote. “As a result, any attempts—whether by the House or by the current President—to invade that sphere of confidentiality must be resisted.”
In an unprecedented move, Biden rejected Trump’s appeal for executive privilege to shield privileged communications from the partisan committee. “President Biden has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents,” Biden’s attorney wrote in October. “Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities.”
Clark also rightly asserts he was not involved with the events of January 6. “Mr. Clark had nothing to do with the January 6 protests or the incursion by some into the Capitol,” MacDougald wrote.
Text of the Letter
November 5, 2021
Dear Representative Thompson:
I have been retained to represent Jeffrey Clark in the investigative matters pending before your Committee.
Despite disparaging and misleading media narratives, Mr. Clark is not a politician and has never sought notoriety or press attention beyond what was necessary to discharge his duties. Indeed, despite serving more than four years during the Bush Administration’s Justice Department from 2001-2005 and more than two years during the Trump Administration’s Justice Department from 2018-2021, he was never once during those six-plus years of service asked to come before a congressional committee for oversight purposes, even though he litigated and supervised highly controversial cases. He had a winning record, recovered billions of dollars for the fisc, successfully defended numerous agency rulemakings of extreme complexity, and personally briefed and argued many cases—exemplary service. He was confirmed in October 2018 with bipartisan support in the Senate—just one part of his distinguished 25-year legal career.
Now, after his most recent, 26-month-plus tenure in government ending in January 2021, he wants nothing more than to return to ordinary life and law practice, without being subjected to selective anonymous leaks and press attacks. Yet he finds himself involuntarily caught up in a novel conflict that includes both significant inter-branch and cross-presidential features to which we must provide a response.
The main purpose of this letter is this: Because former President Trump was properly entitled, while he held office, to the confidential advice of lawyers like Mr. Clark, Mr. Clark is subject to a sacred trust—one that is particularly vital to the constitutional separation of powers. As a result, any attempts—whether by the House or by the current President—to invade that sphere of confidentiality must be resisted. Nothing less will comport with both Mr. Clark’s obligations to former President Trump and with Mr. Clark’s ethical obligations as an attorney. The general category of executive privilege, the specific categories of the presidential communications, law enforcement, and deliberative process privileges, as well as attorney-client privilege and the work product doctrine, all harmonize on this point. Most importantly, core matters of constitutional principle hang in the balance.
Mr. Clark’s position as a legal advisor to the President late in 2020 and early 2021 was particularly sensitive because he was a Senate-confirmed Justice Department leader with significant high-profile litigation and governmental experience, making it natural for a President to seek out and consult his views.
We trust that members of Congress of all stripes would agree that it is indisputable that American Presidents need to be able to consult, as they see fit, with their Senate-confirmed appointees. The principle goes both ways. Whomever succeeds President Biden, for instance, should not be able to expose to public scrutiny advice provided to President Biden by his advisors. Establishing precedent to the contrary would deeply chill the vigorous Executive Branch and energetic President the Founders envisioned.
Without that energy and ability to be candid, presidential advisors would be reduced to bland, tasteless creatures, and the prospect of innovative advice would be stifled.
For these reasons, as amplified below, and with due respect to the Committee, Mr. Clark has come with me today, to present this letter of objection. Mr. Clark will, of course, abide by a future judicial decision(s) appropriately governing all underlying disputes with finality, but for now he must decline to testify as a threshold matter because the President’s confidences are not his to waive.
Since August 2, 2021, when a pivotal letter was sent on behalf of former President Trump to Mr. Clark, there have been several cardinal developments:
(1) On September 23, 2021, this Committee subpoenaed senior White House officials Mark Meadows and Daniel Scavino, senior Pentagon official Kashyap Patel, and Stephen Bannon, making especially clear to Mr. Clark that executive privilege had been invoked in light of the violation of a condition set forth in the August 2, 2021, letter from former President Trump’s counsel, as explained in more detail below;
(2) On or about October 7, 2021, former President Trump invoked executive privilege and instructed these four presidential advisors not to comply with the Committee’s requests;
(3) Additionally, on September 29, 2021, the Committee had subpoenaed 11 other individuals to appear for questioning; and, most importantly,
(4) The former President took the critical step of bringing suit against the Committee, among others, in Trump v. Thompson, Civ. A. No. 21-2769 (D.D.C. Oct. 18, 2021). In this case, President Trump asserts executive privilege and is objecting to the Committee’s request to the Archivist of the United States to produce records of his administration.
The August 2 letter from your former colleague, Georgia Congressman Douglas A. Collins, stated to Mr. Clark that “President Trump continues to assert that the non-public information the Committees seek is and should be protected from disclosure by the executive privilege,” and that this “executive privilege applicable to communications with President Trump belongs to the Office of the Presidency, not to any individual President, and President Biden has no power to unilaterally waive it.”
The Collins letter also quoted the Supreme Court’s recognition that “the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic.” That decision provides that the purpose of the privilege is to “give his advisers some assurance of confidentiality,” so that the “President [can] expect to receive the full and frank submission of facts and opinions upon which effective discharge of his duties depends.”
Additionally, the August 2 letter noted that an earlier July 26, 2021 letter to Mr. Clark from the current Justice Department had selectively edited a quotation out the Nixon decision, leaving off the key sentence that “the privilege survives the individual President’s tenure.”
I concur with that assessment by the former President and his counsel. Were any successor occupant of the office of President able to waive claims of executive privilege asserted by his or her predecessors, the principal purpose of the privilege would be defeated, to the detriment of the Executive Branch, to the separation of powers, and to the proper functioning of government as envisioned by the Constitution, relevant judicial precedent, and long traditions of inter-branch accommodation. This is particularly true when, as here, President Biden’s purported waivers over recent months may have been informed by partisan political purposes. This is suggested by the haste with which Mr. Biden prejudged Mr. Bannon’s invocation of the privilege on behalf of former President Trump.
Executive privilege has fundamental importance to and constitutional significance in the operation of government. Waivers of executive privilege should therefore be considered only with a gravity and solemnity commensurate with their deployment, and should not be influenced by workaday political grievances or by grudges lingering from past political controversies, even bitter ones.
Other former Department of Justice officials who received the Collins letter have apparently interpreted its concluding paragraph to mean that the former President had waived the privilege on a blanket basis or somehow otherwise greenlighted their testimony to Committees looking into assertedly similar issues prior to this Committee beginning its work. We disagree with that interpretation. No fair reading of the Collins letter can conclude that it waives any privileges as to an official like Mr. Clark, especially after the key contingency set out in the letter had been triggered.
Nonetheless, to avoid further distraction and without in any way otherwise waiving the executive privilege associated with the matters the executive privilege associated with the matters the Committees are purporting to investigate, President Trump will agree not to seek judicial intervention to prevent your testimony or the testimony of the five other former Department officials . . . who have already received letters from the Department similar to the July 26, 2021 letter you received, so long as the Committees do not seek privileged information from any other Trump administration officials or advisors.
The condition in the emphasized language has been triggered because the Committee sought privileged information from multiple other Trump administration officials or advisors before Mr. Clark was subpoenaed on October 13, 2021.
Our position is simple and is dictated by the plain text of the letter. The Collins letter does not waive privilege as to Mr. Clark. Even before the contingency triggered by your Committee seeking information from other Trump Administration officials had occurred, at best the Collins letter indicated that former President Trump would agree himself not to seek judicial intervention on the pre-contingency state of the facts. That is not remotely the same as authorizing testimony or waiving executive privilege. All portions of the Collins letter prior to the concluding paragraph clearly invoked privilege. Nor could Mr. Collins’ indicating that the former President would not file suit at an earlier time act to relieve Mr. Clark of his ethical obligations.
And surely, once the Committee issued subpoenas to Messrs. Meadows, Scavino, Patel and Bannon on September 23, the assertion of executive privilege set forth in all of the other paragraphs of that letter applied with special force to Mr. Clark. This is because Congress has, in fact, sought privileged information from Messrs. Meadows, Scavino, and Patel as they are all, no doubt, “other Trump administration officials.” In short, even former President Trump’s statement that he would not go to court in August 2021 was expressly conditional, and the Committee’s issuance of the Meadows, Scavino, and Patel subpoenas has caused the failure of that condition. Therefore, especially after the triggering of the contingency, the letter simply cannot be read as an unconditional waiver as to Mr. Clark or the others named in the final paragraph.
Accordingly, particularly under the present circumstances, the Collins letter expressly informs Mr. Clark that President Trump is asserting and not waiving executive privilege with respect to the Committee’s pursuit of information from Mr. Clark. President Trump’s assertion of his privileges with respect to the Committee’s subpoena to Mr. Clark is confirmed in Trump v. Thompson, et al, U.S.D.C. D.C. 1:21-cv-02769-TSC
The Committee also sought testimony and documents from several individuals, some of whom were serving in the Trump Administration in January and others who were not. To preserve all privileges applicable to him and the Presidency, President Trump sent a letter to a number of these individuals, instructing them to preserve any and all relevant and applicable privileges, including without limitation the presidential communications and deliberative process privileges and attorney-client privilege, all to the extent allowed by law.
The Committee of course has actual notice of this contention since it is a party to that litigation.
Mr. Clark thus has no choice but to comply with President Trump’s assertion of executive privilege and related privileges.
Since September 7, 2021, staff on the Select Committee has been in contact with Mr. Clark’s former attorney, Robert Driscoll, about the possibility of Mr. Clark giving a transcribed interview to the Committee regarding communications with and advice given to former President Trump during the last few months of his Administration.
In good faith and while he was engaging in legal research and keeping apprised of related actions by the Committee and other parts of Congress, Mr. Clark had been requesting and reviewing documents from the Department of Justice pursuant to 28 C.F.R. § 16.300. And, if the federal judicial system orders Mr. Clark directly or produces final and clearly applicable precedent in (a) related case(s) indicating that Mr. Clark must testify, he would resume that process consistent with other legal strictures. But in line with our research and study, events subsequent to September 7 have convinced me that the only proper course of action for Mr. Clark now is to stand on the privilege position articulated to him on August 2 by former President Trump and affirmed in his October 19, 2021 filing in Trump v. Thompson.
This is for three reasons: (1) first and foremost because former President Trump, as noted, took heavy step of invoking the privilege in federal court litigation on October 18 against the Committee in its official capacity, indicating that the inter-branch accommodation process had broken down; (2) because the September 23 subpoenas to Messrs. Meadows, Scavino, and Patel unmistakably triggered the contingency in the Collins letter, seemingly removing the basis for any potential accommodation agreement with the Committee premised on it cabining the scope of its inquiry; and (3) because the former President acted to invoke the privilege as to those advisors and Mr. Bannon.
I am aware that other former top officials in the Department of Justice have provided testimony to Congress, despite the former President’s assertion of privilege and despite the failure of the conditions in the Collins letter. As the privilege was not theirs to waive, at least without greater clarity (such as a court order with finality or a comprehensive arrangement entered into between former President Trump and Congress, where the latter agreed not to seek “privileged information from any other Trump administration officials or advisors”), it is unclear to me how their testimony could be consistent with former President Trump’s assertion of executive privilege.
Former President Trump holds that privilege, not them. Be that as it may, in the present circumstances, the fact that other former officials may have testified, rightly or wrongly at the time, does not change Mr. Clark’s obligations in light of the recent positions taken by former President Trump in the Collins letter and in Trump v. Thompson. Indeed, D.C. Bar Ethics Opinion #288 has advised that, even in response to a congressional subpoena (and therefore, by parity of reasoning, in response to a voluntary request as well), a “lawyer has a professional responsibility to seek to quash or limit the subpoena on all available, legitimate grounds to protect confidential documents and client secrets.”
It is improper to put Mr. Clark in a vise between this Committee and its claimed enforcement powers on the one hand and his constitutional and ethical obligations on the other, especially while there is a pending lawsuit to determine President Trump’s privilege objections. To apply such pressure to Mr. Clark is to present him with a potential Hobson’s choice in a manner not countenanced by the long history of inter-branch accommodation over Congressional requests for information from the Executive Branch. The Constitution is the ultimate source of our law and this Committee is bound to respect government-wide constitutional boundaries, including respecting the prerogatives of the coequal Executive Branch.
Additionally, the claim made by Senate counsel at the outset of the relevant testimonies of at least one of these other Department of Justice officials, namely, that the Collins letter was a “letter of nonobjection . . . on behalf of former President Trump,”[9] if it were ever correct there (and it is not because nothing in the letter waives privilege or states a general principle of non-objection), is obviously incorrect as to Mr. Clark at the present time. The Collins letter quite explicitly (1) asserts that the former President has not waived claims of executive privilege; (2) asserts the privilege; and (3) at most, even from this Committee’s potential perspective, fixes conditions that as to Mr. Clark are no longer met.
In light of the foregoing, I have advised my client that, at this time and based on these most up-to-date factual developments, he is duty-bound not to provide testimony to your Committee covering information protected by the former President’s assertion of executive privilege. Accordingly, beyond showing up today to present this letter as a sign of his respect for a committee of the House of Representatives, albeit one not formed in observance of the ordinary process of minority participation, Mr. Clark cannot answer deposition questions at this time. No adverse inferences can or should be drawn from Mr. Clark accepting my advice. His doing so defends the Republic’s interest in the separation of powers.
As noted, Mr. Clark is not a politician but he is a strong defender of the Constitution, stemming from his political beliefs as an unapologetic conservative—beliefs protected by the First Amendment.
In addition to the foregoing, I must also point out that the vast majority of the document requests in the subpoena sent to Mr. Clark are duplicated in the requests for documents sent by the Committee to the National Archives presently at issue in the Trump v. Thompson litigation. It is entirely proper, therefore, to defer compliance with the Committee’s subpoena to Mr. Clark until that litigation is resolved.
Moreover, the documents subpoenaed from Mr. Clark are instead largely in the possession of the Department of Justice or the Archives. Mr. Clark left his work papers at the Department of Justice when he resigned in anticipation of the January 20, 2021 inauguration of President Biden. Based on prior actions, beginning with those of the House Oversight Committee, we also believe that your Committee has access to Mr. Clark’s government records, making the imposition on us of organizational work, such as Bates-stamping documents, unduly burdensome. If the Committee could please confirm this one way or the other, it may obviate any claim of demonstrably critical need for Mr. Clark to re-produce documents the Committee already has, should that become necessary at some future point.
Accordingly, I respectfully urge the Committee to recognize that the best and most regular course in light of the latest developments would be to pause the request for the testimony of Mr. Clark (likely along with the requests for the testimony of Messrs. Meadows, Scavino, and Patel, who would seem similarly situated) pending resolution of the Trump v. Thompson litigation. That will provide important guidance from the Article III branch of government to referee this inter-branch dispute, including, among other things, the entwined issue of whether the current President can purport to waive the former President’s executive privilege over the former President’s objection. As Justice Powell remarked in concurrence in Nixon, “[t]he difficult constitutional questions lie ahead.”
A pause, as we here request, would also show proper comity both to Executive Branch’s interests (considered holistically and not as defined myopically to embrace only the views of the current President) and to the Judicial Branch’s role in resolving cases and controversies. As Nixon indicates, “[t]he confidentiality necessary to this exchange [of advice and confidences between a President and an advisor] cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic.”
I am also compelled to note the disconnect between the scope and purpose of the Committee’s authorizing resolution and the information sought from Mr. Clark. The Committee’s scope revolves around events at the Capitol on January 6, 2021. The Committee would not appear to be seeking to question Mr. Clark about January 6, 2021 and no media reporting has connected him to those events. Mr. Clark had nothing to do with the January 6 protests or the incursion of some into the Capitol. He has informed me he worked from home that day to avoid wrestling with potential street closures to get to and from his office at Main Justice. Nor did Mr. Clark have any responsibilities to oversee security at the Capitol or have the ability to deploy any Department of Justice personnel or resources there. Indeed, Acting Attorney General Rosen testified almost 6 months ago that a January 3, 2021 Oval Office meeting involving him and Mr. Clark, inter alia, did not relate to January 6. That should alone be sufficient for Mr. Clark to be excluded from a January 6 inquiry.
Indeed, just about a week after January 6, Mr. Clark gave an “exit interview” to a reporter for Bloomberg Law that condemned the individuals who forcibly went into the Capitol and engaged in violence, noting that some of them may have been moved by mob psychology (Mr. Clark specifically remembers referencing Gustave Le Bon), besmirching by mere association the far more numerous peaceful protesters exercising their First Amendment rights. As a clear example of mainstream media bias, however, the report later published about that interview omitted Mr. Clark’s remarks on January 6, even though the reporter had repeatedly sought Mr. Clark’s views on the topic during the course of the interview.
For all of these reasons, the information and testimony sought by the Committee as applied to Mr. Clark in particular are outside the scope of the Committee’s charter and are neither proper subjects of the Committee’s subpoena, nor any subsequent attempt to enforce the subpoena.
Finally, I would kindly request a response to the objections set out in this letter, which may include a proposal to me by the Committee as to a more limited scope of inquiry narrowed to January 6—something that I would be happy to engage on to try to reach an agreement. And for the avoidance of all doubt, we reiterate that, during continued discussions and at all times, we reserve all other objections as may be applicable under the circumstances.
Respectfully,
Harry W. MacDougald
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Julie Kelly is a political commentator and senior contributor to American Greatness. She is the author of Disloyal Opposition: How the NeverTrump Right Tried―And Failed―To Take Down the President. Her past work can be found at The Federalist and National Review. She also has been featured in the Wall Street Journal, The Hill, Chicago Tribune, Forbes, and Genetic Literacy Project. She is the co-host of ‘Happy Hour podcast with Julie and Liz.’ She is a graduate of Eastern Illinois University and lives in suburban Chicago with her husband and two daughters.
