A federal judge rejected former Assistant Attorney General Jeff Clark’s efforts to remove the Fulton County, Georgia, criminal indictment to federal court. The Friday decision by Obama appointee Steve Jones constituted an appalling disregard for the executive branch of government, which, unless overturned on appeal, will threaten the confidentiality and candor essential to the executive branch.
Clark had attempted to remove to federal court the sprawling grand jury indictment that get-Trump Fulton County prosecutor Fani Willis had obtained against him and 18 co-defendants, which included the former president. Clark sought removal based on § 1442(a)(1) of the United States code, which 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…”
Judge Jones rejected Clark’s efforts to remove the case, concluding the former assistant attorney general failed to present sufficient evidence to establish that his drafting of a letter on Dec. 28, 2020, addressed to the Georgia governor, the Georgia speaker of the House, and the Georgia president pro tempore of the Senate, was “causally connected” to his job as the assistant attorney general for the Civil Division of the DOJ.
That draft letter, which Clark presented to his DOJ superiors — Jeff Rosen, then-acting attorney general, and Richard Donoghue, then-acting deputy attorney general — noted the DOJ was “investigating various irregularities in the 2020 election for President of the United States” and stated that “we have identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.”
Rosen and Donoghue both refused to sign the letter, disagreeing with Clark’s assessment and the propriety of the Justice Department involving itself in the Georgia election battle. Then-President Trump later met with Rosen, Donoghue, and Clark in the Oval Office, as well as “six other senior administration lawyers from DOJ and the White House,” where the group discussed Clark’s draft letter for more than three house, after which Trump decided against sending the letter.
For drafting the letter and pushing Rosen and Donoghue to send it to Georgia officials, the Fulton County prosecutors charged Clark with “criminal attempt to commit false statements and writings.” But while Clark wrote the Dec. 28, 2020, letter in his DOJ office, using DOJ equipment, presented it to his superiors from his DOJ email account, and met with and argued in favor of the letter in a meeting that included the then-president of the United States, Judge Jones concluded the charges were not “causally connected” to his job as the assistant attorney general for the Civil Division because there was “no evidence that the President directed Clark to work on election-related matters generally or to write the December 28 letter to the Georgia State Officials on their election procedures.”
In essence, then, the federal court refused Clark a federal forum to present his immunity and other defenses unless he disclosed what would have been privileged communications with the president.
Judge Jones also rejected Clark’s removal based on Rosen and Donoghue’s view that sending the draft letter exceeded both Clark and the DOJ’s authority. Under this reasoning, then, all federal employees, even Senate-confirmed officials, could face prosecution in a state court for recommending a course of conduct that others believe to be outside their authority. Such a standard could wreak havoc on the frank deliberations necessary in the executive branch. If the supremacy clause means anything, this holding must not stand.
The 11th Circuit will decide these questions next, and the appeal by Mark Meadows, the former chief of staff for Trump, will set the stage. Meadows likewise appealed from Judge Jones’ decision denying removal of the Fulton County criminal case. And while Meadows’ case differs factually from Clark’s, given their different roles in the Trump administration, the former chief of staff’s briefing reveals a fatal flaw in Judge Jones’ analysis.
In both Meadows and Clark’s cases, Judge Jones asked whether they were being charged for an act “causally connected” to their federal office. But as Meadows’ detailed in his opening brief to the 11th Circuit, Congress in 2011 amended § 1442(a), replacing the “for any act” standard for removal with “for or relating to any act,” taken as a federal officer. This change, as Meadows argues, “displaced the ‘causal connection’ test courts had previously applied and ‘broadened federal officer removal to actions, not just causally connected, but alternatively connected or associated, with acts under color of federal office.’”
Given that then-President Trump spent some three hours discussing Clark’s letter with top DOJ officials, to say that Clark’s drafting of the letter was not “relating to” or “associated with” his federal office is seemingly nonsensical. But so too is this entire circus designed by a county prosecutor in a deep-blue county — which was precisely why Congress created removal jurisdiction for federal officials.