The leftists running the D.C. Bar launch their “October surprise” on Thursday with a preliminary hearing focused on charges brought against former Trump administration Assistant Attorney General Jeff Clark. Given that the ethics charge lodged against Clark is demonstrably false and premised on the fraudulent narratives pushed by the partisan politicians running the Jan. 6 show trial and their partners in the press, it is every member of the D.C. Bar’s Board of Professional Responsibility — and not Clark — who should be investigated for “engaging in conduct involving dishonesty.”
The D.C. Bar launched an investigation into Clark earlier this year, purportedly after receiving a complaint from Democrat Sen. Dick Durbin, the chair of the Senate Judiciary Committee. A formal complaint from the Board of Professional Responsibility charged that Clard had violated the Rules of Professional Responsibility by drafting a Dec. 28, 2020, letter addressed to the Georgia governor, the Georgia speaker of the House, and the Georgia president pro tempore of the Senate concerning the 2020 election. In addition to a signatory line for himself, the draft letter included signature lines for his superiors, Jeff Rosen, the then-acting attorney general, and Richard Donoghue, the then-deputy attorney general.
Clark’s proposed letter stated that the DOJ was “investigating various irregularities in the 2020 election for President of the United States” and noted that “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 continued, “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.”
The draft letter further stated that “the 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.
Rosen and Donoghue both disagreed with Clark’s assessment of the situation, with Donoghue stating, according to the D.C. Bar complaint, that 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’s complaint further alleged that with Rosen and Donoghue refusing to sign the letter, Trump offered Clark the position of acting attorney general and Clark purportedly intended to accept the position and then send the letter to Georgia himself. Ultimately, Trump 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 mere drafting of the letter and advocating for it to be sent to Georgia involved “dishonesty” and “seriously interfere[d] in the administration of justice” in violation of the Bar’s Code of Professional Conduct.
The Real ‘Dishonsty’ Rests with the D.C. Bar
It was not Clark’s letter, however, that was “dishonest” or sought to interfere in the “administration of justice,” but rather the “Specification of Charges” the D.C. Bar leveled against Clark. In short, in the draft letter, Clark spoke of “voting irregularities” that “may have impacted the outcome of the election in multiple states,” and such irregularities, in fact, existed. For example, as The Federalist reported last year, evidence suggests enough illegal votes were cast in Georgia to possibly tip the election results.
Clark stressed that point in a response brief filed with the D.C. Bar, noting that the bar wrongly accepted “the dogmatic premise of Senator Durbin’s complaint that there were no significant irregularities in the 2020 election.” But as Clark then detailed, subsequent judicial decisions and investigations in Pennsylvania, Georgia, Arizona, Wisconsin, and Michigan vindicated his view.
What did not exist, and what Clark’s letter never claimed existed, was evidence of “fraud” that “may have impacted the outcome of the election.” Yet in the Bar’s Specification of Charges, the Board of Professional Conduct equated “fraud” with “voting irregularities” and then falsely asserted that “on December 1, 2020, and again on December 21, 2020, Mr. Barr publicly announced that there was no evidence of election fraud or irregularities that would have altered the result of the 2020 presidential election.” However, contrary to the D.C. Bar’s factual representation, then-Attorney General William Barr did not discuss election irregularities, instead focusing solely on the question of “election fraud.”
Specifically, on Dec. 1, 2020, during an interview with the Associated Press, Barr said that while the FBI and U.S. attorneys had been checking up on tips and complaints, “to date, we have not seen fraud on a scale that could have effected a different outcome in the election.”
“There’s been one assertion that would be systemic fraud and that would be the claim that machines were programmed essentially to skew the election results. And the DHS and DOJ have looked into that, and so far, we haven’t seen anything to substantiate that,” Barr said.
Likewise, on Dec. 21, 2020, during a press conference, Barr spoke only of fraud and not “voting irregularities.” “As you said, I’ve already commented on fraud,” Barr began in response to a question about whether sufficient evidence justified the appointment of a special counsel to investigate election fraud. “Let me just say,” Barr continued, “there are fraud, unfortunately, in most elections. I think we’re too tolerant of it, and I’m sure there was fraud in this election, but I was commenting on the extent to which we had looked at suggestions or allegations of systemic or broad-based fraud that would affect the outcome of the election. And I already spoke to that, and I stand by that statement.”
The former attorney general’s statements, focused as they were on election fraud, thus prove entirely irrelevant to the content of Clark’s letter that spotlighted instead election irregularities. And that the D.C. Bar in its charge against Clark misrepresented Barr’s public comments is the board’s first brush with “dishonesty.”
But Wait, There’s More
The Board of Professional Responsibility’s dishonesty continues when it claims that Clark’s statement “that the Department of Justice had ‘identified significant concerns that may have impacted the outcome of the election in multiples States, including the State of Georgia’” “was false,” because “the Department was aware of no allegations of election fraud in Georgia that would have affected the results of the presidential election.” Again, Clark never said “election fraud” would have affected the results of the election. In fact, in his draft letter, Clark highlighted not allegations of election fraud but the pending litigation in Fulton County that involved claims of violations of state election law.
Further, while the D.C. Bar framed Barr’s statements as proving Clark’s dishonesty, Barr’s comments actually highlighted the distinction between fraud and election irregularities, which the D.C. Bar conflates. Specifically, after noting that the DOJ had investigated claims of “systemic fraud,” such as “the claim that [voting] machines were programmed essentially to skew the election results,” and found such accusations without support, Barr explained that some “people were confusing the use of the federal criminal justice system with allegations that should be made in civil lawsuits.” The remedy for such complaints rested with state or local officials and not the DOJ, Barr stressed. By Barr’s own words, then, there was a distinction between claims of election fraud and other allegations of election irregularity.
After Barr’s departure, Clark advocated for the DOJ to take a more proactive approach to the concerns of voting irregularity by, for instance, informing the Georgia Legislature of the concerns and advising the state to address them. His bosses disagreed with Clark’s assessment, but contrary to the D.C. Bar’s claims, that does not make Clark’s position “dishonest.” On the contrary, it is the D.C. Bar’s complaint that is dishonest by claiming that the views of any one individual in the DOJ represented “the Department’s” position.
Yet, throughout its charge against Clark, the D.C. Bar alleges that statements Clark wrote in the draft letter were “false” because “the Department” did not hold the position Clark pushed. For instance, the D.C. Bar alleged that Clark’s assertion in the draft letter that “the sluggish pace” of the Fulton County litigation “makes the calling of a special session of the Georgia General Assembly warranted,” was false because “the Department” “was not concerned by” the ”lack of progress” with the pending Fulton County lawsuit.
However, as Clark stressed in his response to the D.C. Bar’s charge, “it is especially wrong as a legal matter to conflate the views of the Department of Justice with the views of Rosen and Donoghue.” In other words, the DOJ’s position only became “the Department’s position,” after Clark advocated for his course of action; Rosen, Donoghue, and others argued against it; and Trump, as the executive, adopted the dissenter’s view and opted against having the DOJ send the letter.
While non-lawyers may not naturally differentiate between “the Department” and the individuals leading “the Department,” the D.C. Bar is comprised of attorneys who fully understand the importance of that distinction, making their charge against Clark for “dishonesty” in drafting the letter dishonest.
So when the D.C. Bar previews its case against Clark on Thursday during the preliminary hearing, remember it is the Board of Professional Responsibility lawyers, not Clark, who deserve sanction — and especially so for trying to spin an October surprise.