The House committee investigating the Jan. 6 riot at the Capitol voted unanimously Wednesday night to advance a measure to refer former Trump Justice Department official Jeffrey Clark to his previous employer for criminal contempt of Congress, but is also giving him one last chance to testify.
Committee chair Bennie Thompson, D-Miss., said Wednesday evening that Clark's attorney notified him on Tuesday night that his client "now intends to claim Fifth Amendment protection" against self-incrimination.
"This is, in my view, a last-ditch attempt to delay the Select Committee’s proceedings. However, a Fifth Amendment privilege assertion is a weighty one," Thompson said.
"I have informed Mr. Clark’s attorney that I am willing to convene another deposition at which Mr. Clark can assert that privilege on a question-by-question basis, which is what the law requires of someone who asserts the privilege against self-incrimination. Mr. Clark has agreed to do so."
Despite the development, the bipartisan committee voted to refer Clark for contempt, which Thompson suggested might not proceed if Clark cooperates, noting the committee's action is "just the first step of the contempt process."
"We want the facts, and we need witnesses to cooperate with their legal obligation and provide us with information about what led to the January 6th attack," Thompson said.
The panel's vice chair, Rep. Liz Cheney, R-Wyo., said the committee "will not finalize this contempt process if Mr. Clark genuinely cures his failure to comply with the subpoena this Saturday."
Clark, who as acting head of the Justice Department's civil division played a key role in then-President Donald Trump’s effort to overturn the 2020 election, drew Thompson's ire last month when he refused to testify or hand over subpoenaed documents.
Thompson at the time called Clark's failure to cooperate "unacceptable" and said the House committee was in need of "the information that he is withholding and we are willing to take strong measures to hold him accountable to meet his obligation.”
In a letter to Clark in October, Thompson said the panel's investigation "has revealed credible evidence that you attempted to involve the Department of Justice in efforts to interrupt the peaceful transfer of power."
NBC News reported in January that Trump had considered replacing then-acting attorney general Jeffrey Rosen with Clark, who was willing to help Trump push his claims of widespread voter fraud in an effort to overturn the election results.
A nearly 400-page report released by the Senate Judiciary Committee in October found that Clark had pushed Rosen and his top deputy in late December "to publicly announce that DOJ was investigating election fraud and tell key swing state legislatures they should appoint alternate slates of electors following certification of the popular vote. He did so following personal communications with Trump, including at least one meeting that Clark attended in the Oval Office without the knowledge of DOJ leadership."
Clark later told Rosen if he didn't do want Trump wanted, Trump would fire Rosen and put Clark in his job, the report said. Rosen refused to relent, and Trump's efforts were stymied after DOJ leadership warned of mass resignations if Trump followed through with the plan, according to the Senate report.
In January, Clark told The New York Times, which had first reported on Trump's efforts at DOJ, that "There was a candid discussion of options and pros and cons with the president. It is unfortunate that those who were part of a privileged legal conversation would comment in public about such internal deliberations, while also distorting any discussions."
If the panel decides to finalize the referral, the measure would head to the House floor, where lawmakers would vote on whether to send the criminal referral to the U.S. attorney's office in Washington, D.C.
The House Rules Committee is scheduled to meet on Thursday morning to consider the resolution recommending the House hold Clark in contempt. Approval from the committee is a necessary step before the measure can come to the floor.
The Jan. 6 panel's criminal contempt recommendation is its second so far.
The bipartisan House committee recommended former Trump adviser Steve Bannon be referred for criminal prosecution in October after he refused to appear for a deposition or hand over any documents, citing executive privilege.
The House later signed off on the measure, and Bannon was hit with two charges of contempt by the U.S. Attorney's office in Washington, D.C.. He has pleaded not guilty.
Unlike Bannon, Clark appeared on Capitol Hill for scheduled subpoenaed testimony, but declined to answer any questions, citing executive and other privileges.
"As the Select Committee has repeatedly pointed out to Mr. Clark, his claims of executive privilege are wholly without merit, but even if some privilege applied to aspects of Mr. Clark’s testimony or document production, he was required to assert any testimonial privilege on a question-by-question basis and produce a privilege log setting forth specific privilege claims for each withheld document. Mr. Clark has done neither," the committee said in a report released Tuesday recommending he be found in contempt.
Thompson said last month the panel was also considering a referral against Trump's former White House chief of staff Mark Meadows, who did not appear for his scheduled Nov. 12 deposition. But on Tuesday, Thompson said Meadows "has been engaging with the select committee through his attorney."
"He has produced records to the committee and will soon appear for an initial deposition," the committee chair said, cautioning that the committee panel "will continue to assess his degree of compliance with our subpoena after the deposition."