Motion In Limine Denied In Jeffrey Clark Bar Case

District of Columbia Hearing Committee No. Twelve has ruled on Jeffrey Clark’s assertion of executive privilege and denied his motion in limine

We agree with Disciplinary Counsel that Mr. Clark does not have standing to assert privileges on behalf of former President Trump. See Alexander v. F.B.I., 186 F.R.D. 12, 17 (D.D.C. 1998) (“A distinctive attribute of any privilege is that only the holder of the privilege has the ultimate power to assert the privilege.”). Lack of standing aside, we consider Mr. Clark’s other arguments.

The toothpaste has been squeezed from the tube

Disciplinary Counsel argues that former President Trump’s executive privilege has been waived because he permitted Messrs. Rosen and Donoghue to testify before the Senate Judiciary Committee and the House January 6 Committee, and that testimony has been made public. We agree that the executive privilege cannot be used now to prevent the disclosure in this proceeding of information that has already been made public.

Deliberative process privilege

To the extent that Mr. Clark seeks to argue that the deliberative process privilege applies beyond the range of presidential communications to communications within the Justice Department, the argument suffers from an additional problem. To assert this privilege “[t]here must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” McClelland v. Andrus, 606 F.2d 1278, 1290 n.59 (D.C. Cir. 1979) (quoting United States v. Reynolds, 345 U.S. 1, 7-8 (1953)).

As Disciplinary Counsel notes, here, however, the Justice Department has never asserted a deliberative process privilege to prevent testimony in this matter. To the contrary, it has issued letters authorizing Mr. Rosen’s and Mr. Donoghue’s participation in this proceeding. See Disciplinary Counsel Response Exs. 1 and 2. Even if Mr. Clark had standing to assert the privilege of another, he would still not have a right to claim for his own protection a privilege the holder does not.

Law enforcement privilege

As the Department of Justice has not asserted the law enforcement privilege here, and has instead permitted testimony from the witnesses at issue, there is no basis to conclude that the law enforcement privilege applies.

Attorney-client privilege

President Trump was not the client of the Justice Department lawyers at the January 3, 2021 meeting. Moreover, even if the conversation in the January 3, 2021 meeting could have been subject to the attorney-client privilege, that privilege was waived when former President Trump permitted those present to testify about the meeting.

Link to follow here. (Mike Frisch)