Assistant Attorney General (AAG) Jeffrey Clark was acting “squarely” within his federal authority when he drafted and advocated for the Department of Justice to send a letter to the Georgia legislature concerning the 2020 election, according to former Attorney General Edwin Meese. Additionally, “the prosecution of the President and an AAG” represents “a major affront to federal supremacy never before seen in the history of our country,” Meese further opined in the 19-page affidavit he filed in a federal court on Saturday in support of Clark’s efforts to remove the Fulton County indictment to federal court.
Meese’s affidavit adds gravitas to Clark’s already-strong argument for removal of the criminal case to a federal court, a question federal Judge Steve Jones will consider during a hearing Monday morning.
A little over a month ago, a grand jury in Fulton County, Georgia, returned a sprawling indictment against 19 defendants, including former President Donald Trump. That indictment charged the defendants with various supposed crimes related to “alleged postelection interference with the 2020 presidential election in Georgia.”
Soon after Fulton County’s get-Trump prosecutor Fani Willis announced the charges, Trump’s former Chief of Staff Mark Meadows, Clark, and three alternate presidential electors for Trump sought to “remove” the criminal case from the state court to a federal district court.
While federal courts in nearly all circumstances lack “jurisdiction” or the power to hear a case involving the state’s prosecution of an alleged violation of the state’s criminal code, the “federal officer removal statute” provides an exception to that rule. That statute, which is codified at § 1442(a)(1), provides that a “criminal prosecution that is commenced in a State court” against an “officer” of the United States or any federal agency may “remove” the case to a federal court if the prosecution is “for or relating to any act under color of such office…”
On Sept. 8, 2023, Judge Jones rejected Meadows’ attempt to remove the criminal case to federal court, remanding the case instead to the Fulton County Superior Court. In remanding the case to state court, Jones reasoned that “Meadows’s alleged association with post-election activities,” detailed in the criminal indictment, “was not related to his role as White House Chief of Staff or his executive branch authority.” The federal judge stressed, however, “that its determination on Meadows’s notice of removal and its jurisdiction over his criminal prosecution does not, at this time, have any effect on the outcome of the other co-Defendants who have filed notices,” which, among others, includes Clark, who faces off against Willis’ legal team later Monday morning.
Whether Judge Jones erred in rejecting Meadows’ attempt to remove the criminal case — a question the 11th Circuit Court of Appeals will decide soon on an expedited basis — removal by Clark presents an entirely different equation. The criminal case against Clark rests on his supposed attempt “to make a false statement or writing by composing and attempting to send a letter falsely claiming the Department of Justice had ‘identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.’”
Clark drafted that letter, presented it to his bosses, and advocated for it to his bosses and to then-President Trump while serving as an acting assistant attorney general of the United States. Nonetheless, the Fulton County D.A. argues Clark was not acting “under color of office” because Clark’s supervisors told Clark that sending the letter would be outside the scope of authority of the DOJ and stated that Clark and his Civil Division had no role in election issues.
Meese’s affidavit eviscerated these arguments, citing the Department of Justice’s Office of Legal Counsel’s opinion that concluded assistant attorneys general are “not limited to any one Division of the Department of Justice or any specific set of duties,” but instead can “be moved from heading most Divisions to instead heading most other Divisions at the discretion of the Attorney General.”
“And, of course,” Meese continued, “the Attorney General reports to the President, which means the President has discretion to assign duties to the AAGs as the President sees fit.”
Thus, as Meese concluded, Clark’s status as an acting assistant attorney general in the Civil Division did not prevent the president from assigning him other duties, including those related to election issues. In fact, “Clark directly supervised 2020 election-related controversies in his capacity as Acting AAG of the Civil Division,” Meese noted.
“In short, taking positions on legal issues relating to the conduct of the 2020 election and consideration of whether to pursue the policy option inherent in the alleged draft letter were not strictly off limits or out of bounds for Mr. Clark,” the affidavit concluded.
Not only was Clark acting within the “color of his office,” Clark’s conduct in drafting the letter and advocating for it to be sent to the Georgia legislature was protected by numerous privileges, including the executive and deliberate process privileges. Further, where “the opinion in question relates to whether, how, and to what extent to exercise the President’s or the Department’s law enforcement authorities under the President’s supervision, it is also subject to the law enforcement privilege,” Meese concluded.
These privileges provide Clark several defenses to potential criminal liability for the charges alleged in the Fulton County indictment. And under the federal removal statute, all a defendant needs to do — in addition to establishing he acted “under color of such office” — is raise a colorable federal defense. Meese’s affidavit confirms Clark has done both and is thus entitled to remove the case to federal court.
Whether Judge Jones agrees remains to be seen, but Clark and the country should know soon.
