The disciplinary trial of Donald Trump’s former DOJ official Jeffrey Clark wrapped up on Thursday with the D.C. Bar’s disciplinary panel making a nonbinding preliminary determination that Clark was culpable on at least one of the two counts against him.
For drafting a letter that was never sent to Georgia officials advising them of their options in dealing with the 2020 election illegalities, he was charged with engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and engaging in conduct that seriously interferes with the administration of justice, Rules 8.4(c) and (d) of the Rules of Professional Conduct.
Clark is also a defendant in Fulton County District Attorney Fani Willis’s RICO prosecution.
The final day consisted of closing statements and arguments for enhancing or mitigating the penalty.
D.C. Bar attorney Hamilton Fox gave a closing statement first. He said it came down to acting Attorney General Jeffrey Rosen and his deputy Richard Donoghue refusing to sign Clark’s draft letter. He said Trump wanted the DOJ leadership to “say the election was corrupt,” and Rosen and Donoghue wouldn’t, unlike Clark, since they were “men of integrity.”
Fox said Clark made false statements in his draft letter. One allegedly said there was an alternate state of electors. A second said there were concerns about the Trump v. Raffensperger case since the DOJ had “nothing to do with that case.” A third said, “We have identified significant concerns that may have impacted the outcome of the election in multiple states, including the state of Georgia.” Fox said Clark had no knowledge of this.
Fox criticized Clark for referencing the Ligon Report in his draft letter as evidence of the election illegalities. He said it wasn’t a report, merely a “summary of testimony given,” and that Clark never came up with any “significant concerns” about the election. The Ligon Report was a Georgia Senate subcommittee that reviewed all the election wrongdoing in Georgia and concluded that the election should not have been certified.
Fox said there was no indication that Clark saw any evidence of election wrongdoing, such as that discovered by election integrity investigator and retired IT professional Garland Favorito, when Clark wrote the draft letter on December 28, 2020. Fox claimed that “this was well beyond recklessness.”
At times, the disciplinary panel chair, Merril Hirsh, asked Fox, “Did you believe the evidence showed by clear and convincing evidence that Clark did not believe the contents of his letter?” He said yes, and Hirsh responded that Clark’s witnesses testified otherwise.
Hirsh asked Fox that if Rosen and Donoghoe had signed the letter, wouldn’t that have been the position of the DOJ? Fox said the letter would still be false since the DOJ had not identified significant concerns in Georgia. Hirsh responded, “But who is it who determines whether a concern is significant?”
Hirsh asked Fox, “So you’re saying Clark’s draft letter, if it had been sent, would have resulted in extra litigation, and that constitutes conduct that is prejudicial to the administration of justice?” Fox said yes.
At one point, Hirsh hinted that the panel might not find Clark culpable of violating ER 8.4(c) and asked Fox if he could still prove a violation of ER 8.4(d).
Regarding the election irregularities, Hirsh asked Fox, “Is it tainting the judicial process to have those types of things examined?” Fox responded that Rudy Giuliani’s law license was indefinitely suspended for challenging the 2020 election.
Hirsh asked Fox, “The essence is he argued too vigorously?” Fox said it was more about Clark “continuing to advocate his position.”
Hirsh asked him, “What if we find that Clark genuinely believed this, he believed he was trying to protect democracy, isn’t there an argument that makes it more important for him to advocate for this?” Fox referenced Giuliani’s suspension again, and said “sincerity of belief doesn’t justify acting without a factual basis.”
Next, Hirsh pointed out that Clark never thought his discussions and the draft letter would go public, and the final decision wouldn’t be his anyway. Fox responded, “Think how close this came to being a reality,” and praised Rosen for going to Trump to stop the letter.
Fox said there was no alternate slate of electors in Georgia. However, one of the disciplinary panelists pointed out one on December 14, 2020. Fox corrected himself and said that when Clark wrote his draft letter on December 28, 2020, there was no longer an alternate slate.
Clark’s attorney, Harry MacDougald, gave his closing statement, beginning by pointing out that he could find “no disciplinary case ever” where an attorney was disciplined for a “confidential internal draft of a letter that was not sent” and “never left the office.”
He said the charges are “allegedly dishonest conduct by attempting to send a letter with false statements.” He said the D.C. Bar claimed the positions in the letter “weren’t the positions of the DOJ at the time,” they accused Clark of stating that the DOJ was aware of election fraud in Georgia. However, MacDougald pointed out that Clark never said “election fraud” in his letter; he said “significant concerns.” Furthermore, some people at the DOJ could have had significant concerns. He said the DOJ didn’t take a position on irregularities because it didn’t investigate them.
MacDougald said Donoghue said it didn’t matter how many irregularities there were in Georgia’s election; they weren’t going to investigate since it wasn’t the role of the DOJ. MacDougald said the disciplinary panel needs to consider the accuracy of Donoghue’s statements. “The opinions of Rosen and Donoghue aren’t the voice of God,” he said. “They aren’t written on stone tablets brought down from Mt. Sinai.”
MacDougald pointed out that Donoghoe admitted that Clark had evidence in the form of the Ligon Report; he disagreed with the weight of the evidence. MacDougald said Donoghoe was “all over the place” on whether the DOJ was investigating Georgia election wrongdoing.
MacDougald said Clark wasn’t ignoring evidence since after he received a briefing from the Office of the Director of National Intelligence (ODNI), he agreed there wasn’t foreign interference in the election. He came to the same conclusion as Rosen and Donoghoe on that.
When Clark’s team sought evidence from ODNI, including testimony from the former director and the draft report on foreign interference, they were denied access to those documents for their defense, MacDougald said. He noted that the public documents from ODNI reveal that the director disagreed due to his hostility toward Trump.
MacDougald said Clark had the authority to send his draft letter, but he didn’t; he went and talked to Rosen instead. He said Rosen was “offended” and went to talk to Trump to get the letter shut down. MacDougald said it was always a matter of being subject to the approval of Clark’s higher-ups. He said that refutes the D.C. Bar’s charge that Clark behaved recklessly.
Next, MacDougald said the D.C. Bar’s own witness, former White House counsel Patrick Philbin, said Clark was sincere. Philbin warned Clark that it might destroy his career. MacDougald said Clark felt so strongly about it, he was so sincere, that he stuck with his position. Additionally, he said Rosen believed Clark was sincere. MacDougald said Clark’s sincerity refutes the bar’s charge of dishonesty.
MacDougald said Clark is being punished for a “thought crime.” He said if you are taking a walk and think of several options to take in a certain situation and never take one of those options, you should not be punished for thinking of that option.
Defending the draft letter, MacDougald said the presidential election contests weren’t concluded by December 14, 2020, since the Georgia alternate slate for Trump had been sent to Vice President Mike Pence. He said the law says if the election contests aren’t concluded by December 14, 2020 — and there was still litigation going on at that time — then it’s up to Congress per the Electoral Count Act.
He discussed the similarities between the 2020 election and the 1960 election. As of December 14, 2020 in Georgia had an alternate slate of electors, just like Hawaii had an alternate slate of electors. He noted that litigation was ongoing in both cases while the second set was proposed.
MacDougald said Georgia Governor Brian Kemp’s position did not contradict Clark’s. Kemp said Georgia officials couldn’t do anything about the election illegalities due to state law. In contrast, MacDougald said Clark’s position wasn’t about state law; he was talking about the constitutional authority of state legislatures.
At times, Hirsh hinted that he was going to rule against Clark. He made a snide comment about how Clark didn’t respect his oath as an attorney, saying Clark took the oath to become a member of the D.C. Bar “with his fingers crossed because he was a DOJ official.”
MacDougald said that “due process entitles fair warning ahead of time; where the line is that you’re not supposed to step over.” He asked, “If it’s a novel charge, and no one has ever been charged before, how are you going to know?” He said he’s asked opposing counsel for two years to find a similar case and they haven’t, no attorney has ever been charged for drafting a letter that was never sent.
He said, “If lawyers aren’t allowed to think different internally, then they won’t, they’ll be afraid. And we’ll all suffer.”
MacDougald concluded his closing statement by reading from the U.S. Supreme Court opinion in West Virginia State Board of Education v. Barnette, which was about the compulsory Pledge of Allegiance during the World War II era. Some Jehovah’s Witnesses objected, and their children were expelled.
Justice Robert Jackson issued the decision on Flag Day in 1943, striking down the requirement. He said, “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”
After closing statements concluded, Clark’s team put on two character witnesses. Paul Salamanca, a legal academic who taught law school, practiced law, and worked at the DOJ under Clark for two years, said, “I think the world of him as an attorney. He taught me in a way that I didn’t even know was imaginable. How many rocks you can turnover in pursuit of your clients’ interests. Honest and upright attorney, conscientious, works hard on behalf of his clients, and he’s careful about the law. I think he’s a terrific lawyer.”
Andrew Emrich, who also worked with Clark at the DOJ in the environmental division, said, “He was always upright and honest. He was a very fine lawyer. He did his homework, he was extremely well prepared, thoughtful. Always wanted to get both sides of a legal view, in my experience. Great deal of intellectual curiosity so always interested in going deeper and getting the reasoning why we took certain positions. Very involved and prepared. Always careful, conscientious, respectful of others and took his obligations as a lawyer very seriously.”
Next, the parties discussed the penalty phase. Fox compared concerns about election wrongdoing in 2020 to the civil unrest in 1860. He said the latter was “the greatest internal threat to the country ever,” and the former was “the second greatest internal threat to the country.” He argued for aggravation of the penalty because “the seriousness of the offense exceeds normal cases,” he said it was “an effort to overturn the result of a presidential election by usurping the leadership of the DOJ.”
Fox said comparable discipline should be the indefinite suspension of Giuliani’s law license.
Hirsh asked Fox to discuss penalties less than disbarment, and Fox refused.
When it was MacDougald’s turn, he reviewed Clark’s credentials. Clark was head of two litigating divisions at the DOJ and was made head of the Civil Division by then-Attorney General Bill Barr, where he supervised over 1,400 lawyers.
“He was commended for his work until this episode, very highly regarded, close to the top of his profession,” MacDougald said.
Clark argued in all circuit courts of appeal and was involved in the most complex environmental litigation in the country. He saved BP billions of dollars as their attorney. He was a partner at the prestigious Kirkland & Ellis — Barr and Rosen came from there.
Clark clerked for a federal appellate judge. He was elected to the American Law Institute in 2020, a “tremendous distinction for a lawyer.” That reflects that “highest level of substantive expertise; they write the Restatements of the Law.” He was governing counsel of the American Bar Association’s Administrative Law Section. He served as chair of the Federalist Society’s Environmental and Property Rights Practice Group for 11 years. He won numerous awards and commendations. He won two awards in 2005 for assisting and defending military readiness, and an award for excellence from the National Oceanic Atmospheric Administration.
MacDougald ridiculed Fox’s criticism of challenging election results.
“It’s a religious test,” he said, “You must have faith in the election, or you can’t be an attorney in D.C. The real sin is he was willing to question the outcome of the election. There are tens of millions of people in the U.S. who feel that way. And we’ve produced the evidence. No official, not even the bar, can enforce orthodoxy of that type. We are free for now.”
He said the draft letter never left the office, “so it doesn’t come within the ambit of conduct subject to bar discipline.” Additionally, “Clark said nothing about it publicly,” and “there was a peaceful transfer of power from Trump to Biden.”
Hirsh interrupted him and attempted to compare the situation to John Hinckley attempting to kill former President Ronald Reagan but not being successful. MacDougald retorted that Hinckley shot others, and his actions weren’t merely a thought crime like Clark’s draft letter.
MacDougald pointed out a threat from Fox. Fox told him if Clark objected to his subpoena for documents by invoking the Fifth Amendment, he would increase the penalty. The D.C. Court of Appeals sided with Clark and threw out the subpoena. MacDougald explained that Clark couldn’t express remorse — which would lessen the penalty — because he’s not talking at all, he’s asserted his Fifth Amendment right against incrimination since he’s being prosecuted in Fani Willis’s RICO case.
MacDougald added that he tried to get the case postponed until after the criminal case but was not allowed to. He said that, as far as he knows, it is unheard of to force an attorney to undergo a disciplinary proceeding before a criminal prosecution.
MacDougald observed that the election challenges in the 2000 presidential election resulted in no bar complaints or discipline. There were objections to the electoral count by Democrats to every Republican presidential winner since then, but none of the attorneys involved (including many members of Congress who are attorneys) were disciplined. Additionally, 17 attorneys general joined in election challenges — “should they all be disbarred too?” He suggested that Fox should start going after some of these others.
He pointed out that Giuliani’s situation differed because he made public statements and filed pleadings.
Closing briefs from the D.C. Bar are due on April 29. Clark’s response is due on May 10, and a final reply from the D.C. Bar is due on May 16. The disciplinary panel, known as the Ad Hoc Hearing Committee for the D.C. Board on Professional Responsibility, will then recommend to the full board. The D.C. Court of Appeals then reviews the board’s decision, which makes the final decision on disbarments.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
