D.C. bar investigators rest case against Jeffrey Clark

Jeffrey Clark, the former Justice Department official who aided Donald Trump’s last-ditch maneuvers to subvert the 2020 election, pleaded the Fifth on Wednesday in a disciplinary proceeding that could result in the loss of his law license.

Clark’s decision to invoke his constitutional right against self-incrimination underscores the criminal jeopardy he faces in other ongoing legal proceedings. In Atlanta, he’s charged alongside Trump in an alleged racketeering conspiracy to corrupt the 2020 election, and in Washington, D.C., federal prosecutors identified him — but have not charged him — as one of Trump’s alleged co-conspirators in a scheme to seize power.

“I will invoke the Fifth,” Clark said in response to a question about when he first met Trump. Clark also said the question was covered by attorney-client, law enforcement and executive privileges. “A veritable phalanx of privileges,” Clark added wryly as the exercise wore on.

The Fifth Amendment to the Constitution protects Americans from being forced to provide testimony that may incriminate themselves in legal proceedings. For Clark, that’s particularly important as he faces a potential criminal trial in Georgia. His attorneys worried that forcing Clark to take the stand simply to invoke his Fifth Amendment right would drive headlines or embarrass Clark, but the D.C. Bar panel presiding over the hearing permitted investigators to pose several dozen questions to Clark.

Clark himself grew combative as the questioning wore on, accusing the lead investigator, Hamilton Fox, of seeking to humiliate him on the stand by forcing him to repeatedly invoke the Fifth Amendment. His bristling prompted Merrill Hirsh, the chair of the panel presiding over the hearing, to admonish Clark not to argue with Fox or risk potentially waiving the privileges he invoked.

Clark’s turn on the stand Wednesday capped a case by bar discipline authorities who may seek to revoke Clark’s license to practice law in Washington, D.C. The two-day case presented by attorneys for the Office of Disciplinary Counsel featured testimony from former acting Attorney General Jeff Rosen, his deputy Richard Donoghue and former deputy White House counsel Pat Philbin.

All three men testified that Clark — the head of DOJ’s Civil Division during the final frenzied weeks of Trump’s presidency — went rogue, circumventing his bosses to meet directly with Trump and encourage his belief that the Justice Department was failing to pursue evidence of fraud.

Bar discipline authorities charged Clark with relying on false claims of fraud to try to coerce Justice Department leaders to send a letter to state legislators inviting them to consider reversing the 2020 election results. Amid his push, Trump began signaling to DOJ leaders that he was considering putting Clark in charge of the department to help effectuate this plan.

Rosen recalled that Clark, initially, was not “forthcoming” about how he had ended up pursuing questions about election fraud even though it was far outside his “lane” at the Justice Department. And he and others repeatedly urged Trump not to elevate Clark.

The three witnesses described Clark’s claims as unmoored from facts and evidence, and said he was seeking to deploy the Justice Department in ways that went beyond its constitutional or legal authority. All of them said they were prepared to resign if Trump had gone through with the plan to elevate Clark — and said nearly everyone else in DOJ leadership and the White House counsel’s office would go with them.

“Everybody was in agreement except Mr. Clark that the path Mr. Clark was advocating was wrong,” Rosen recalled.

Clark began presenting his defense in the case Wednesday afternoon. He has indicated he intends to call statistical and data analysts, GOP election officials and other allies who raised their own concerns about the election results in states like Georgia and Pennsylvania, an attempt to argue that Clark had a legitimate basis for dissenting from his superiors. Clark’s attorneys have argued that his decision to advocate internally for a policy shift at DOJ — one that was never adopted by the department and ultimately turned down by Trump himself amid a revolt from his senior aides — cannot be the basis to punish a lawyer.

Most of Wednesday’s proceedings — before a panel of D.C. Bar attorneys who will judge the case — centered on Rosen’s testimony. Though he has testified repeatedly on the subject, including to the Jan. 6 committee and the Senate Judiciary Committee, it was the first time he delivered his story in the presence of Clark, who sat in the gallery just behind his attorneys, showing little emotion throughout the proceedings.

It was also the first time Rosen publicly faced cross-examination from Clark’s attorneys, who pressed the former DOJ leader on whether he simply had a policy difference with Clark or whether that difference of opinion was a fair basis for punishment.

“Mr. Clark had a different view than yourself as to what the department’s posture ought to be in the election controversies,” Clark’s attorney Harry MacDougald asked.

“Yes,” Rosen replied. “Unfortunately, his wasn’t based on the facts and the law.”