In an unprecedented move, the D.C. Bar opened an investigation into a former top Justice Department lawyer for advice he gave former President Donald Trump, with documents indicating a Democrat senator prompted the probe. The timing of the procedures, and the complicity between elected officials and the bar, suggest a concerted attempt to create an October surprise.
Even more troubling than this election interference, however, is how dangerous the threat of punishing executive-branch attorneys for providing a legal opinion is to the country. The Democrats’ ploy also risks irreparably cementing America’s partisan divide in the governance of our great country.
Earlier this year, purportedly in response to a letter from Democrat Sen. Dick Durbin, the chair of the Senate Judiciary Committee, the D.C. Bar opened an investigation into former Department of Justice attorney Jeff Clark. According to documents filed with the D.C. Bar, based on Durbin’s complaint, the Board of Professional Responsibility charged Clark with violating the Rules of Professional Responsibility by supposedly “engaging in conduct involving dishonesty,” and engaging “in conduct that would seriously interfere in the administration of justice.
The conduct underlying these charges concerned Clark’s drafting of a letter he recommended his bosses send to the Georgia governor, the Georgia speaker of the House, and the Georgia president pro tempore of the Senate concerning the 2020 election. At the time Clark drafted the letter on Dec. 28, 2020, he was the acting assistant attorney general for the Civil Division of the DOJ. He drafted the letter over signature lines for himself and his superiors, Jeff Rosen, the then-acting attorney general, and Richard Donoghue, the then-deputy attorney general.
The draft letter stated that the Department of Justice was “investigating various irregularities in the 2020 election for President of the United States.” The letter continued: “We have identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.” “In light of these developments,” Clark’s proposed letter stated, “the Department recommends that the Georgia General Assembly should convene in special session so that its legislators are in a position to take additional testimony, receive new evidence, and deliberate on the matter consistent with its duties under the U.S. Constitution.”
Additionally, the draft letter said, “[T]he Department also finds troubling the current posture of a pending lawsuit in Fulton County, Georgia, raising several of the voting irregularities pertaining to which candidate for President of the United States Received the most lawfully cast votes in Georgia,” noting that “the trial court there has not even scheduled a hearing on the matter, making it difficult for the judicial process to consider this evidence and resolve these matters on appeal prior to January 6.” The proposed letter then stressed that “the urgency of this serious matter, including the Fulton County litigation’s sluggish pace,” makes the calling of a special session of the Georgia General Assembly warranted and in the nation’s best interests.
Both Rosen and Donoghue strenuously objected to sending the letter, the D.C. Bar’s charge indicated, with Donoghue stating he knew “of nothing that would support the statement, ‘we have identified significant concerns that may have impacted the outcome of the election in multiple states.’” Donoghue further noted he did not believe it was the DOJ’s role to recommend to a “State legislature about how they should meet their Constitutional obligations to appoint Electors.”
The D.C. Bar then alleged in its charge that over the next several days, Trump offered Clark the position of acting attorney general, with Clark purportedly intending to accept the position and then send the letter to Georgia. Trump, however, decided against replacing Rosen and Donoghue and never sent the draft letter to the Georgia officials. Yet the D.C. Bar charged that Clark’s drafting of the letter and advocating for it to be sent to Georgia involved “dishonesty” and “seriously interfere[d] in the administration of justice.”
House Democrats had previously targeted Clark during portions of the Jan. 6 show trial. During those hearings, the Democrat-heavy committee falsely framed Clark’s letter as pushing bogus claims of “election fraud.” “But the proposed letter, which Clark’s bosses rejected, did not make any claims of election fraud. In fact, in one paragraph, Clark expressly referenced a pending lawsuit in Fulton County that focused on violations of the Georgia election code” — irregularities that have since been confirmed.
The Jan. 6 Committee’s partisan lying about Clark and others is bad enough, but the D.C. Bar’s complicity in this political lawfare proves a more significant affront to our constitutional governance — and more destructive to our country.
And make no mistake, it is complicity with Democrats that drove the D.C. Bar to charge Clark with supposed violations of the Code of Professional Responsibility because the “investigation” apparently began in response to Durbin’s complaint. But Durbin has no personal knowledge of the underlying events. He also isn’t a client of Clark’s and doesn’t possess any basis to file a complaint with the bar. In seeking dismissal of the charge, Clark stressed those points and the fact that in the past, the D.C. Bar has refused to charge attorneys based on complaints by disinterested parties. But not here.
Equally telling is the timing of the D.C. Bar’s charge against Clark and its refusal to address the numerous legal arguments Clark has presented for the dismissal of the charge.
While a month ago Clark submitted a detailed motion to dismiss the charge — arguing the D.C. Bar lacks jurisdiction to punish him for the advice he provided then-President Trump, and that in any event, the alleged charges fail to state a violation of the Rules of Professional Conduct because there were no false statements as a matter of law — the D.C. Bar refused to rule on Clark’s motion to toss the charge. Instead, it took Clark’s motion to dismiss “under advisement” and directed the Hearing Committee to include a recommended disposition in its report and recommendation on the charges.
In other words, the D.C. Bar demands Clark defend himself before it addresses the question of whether it has the power to force Clark to defend himself! Why?
An order issued by the D.C. Bar On Thursday gives the answer — an October surprise: On Oct. 6, 2022, the D.C. Bar will hold a pre-hearing conference via Zoom, which will be live-streamed on the Hearing Committee’s YouTube channel.
That pre-hearing conference, even if it is limited to discussing logistics, will focus the media on Trump and the post-election chaos right before the midterm elections. And if the D.C. Bar opts for holding the hearing on Nov. 14, 2022 — one of three dates proposed in Thursday’s order — the various witness subpoenas, documentary exhibits, and other pre-hearing filings that must be filed with the D.C. Bar before the hearing will potentially be circulating in the days before voters head to the polls to decide control of Congress.
The rank partisanship of the D.C. Bar reeks, but the consequences extend much beyond the personal attack on Clark because the charge that Clark violated the Rules of Professional Conduct rests entirely on the advice he provided the then-president. Lawyers working in the executive branch must be free to provide the president with their view of the law, and the bar has no business questioning that guidance because it is the president’s sole responsibility to determine how best to execute his Article II duties.
The danger flowing from the D.C. Bar’s persecution of Clark extends beyond the harm the executive branch will suffer if attorneys feel constrained from providing frank legal advice to the president. By launching an investigation into Clark based on a complaint from a Democrat senator, as appears to be the case, the D.C. Bar has unleashed the potential for an escalating battle of political retribution.
What is to stop a Republican lawmaker from seeking the disbarment of top Biden administration attorneys based on their “false” guidance on the law? Which attorney gave Biden the green light to unconstitutionally issue an executive order “forgiving” student loans? Which attorneys recommended the Biden administration’s maneuver to side-step Roe v. Wade’s reversal by telling hospitals that abortions may be “stabilizing” treatment mandated under federal law? What about any other constitutionally suspect executive orders or regulations?
If a complaint by a Democrat senator proves sufficient to open an investigation into a political opponent, then a complaint by a Republican politician should likewise be enough. By pursuing Clark, the D.C. Bar has given roots to the partisan targeting of the executive branch via its attorneys. As a result, the partisan divide will only grow, and that is the last thing our country needs right now.