Jeffrey Clark’s Attorneys Attack President Biden
A motion in limine in the Jeffrey Clark bar prosecution has been posted today
ODC’s brazen and politically motivated efforts to breach the confidentiality and loyalty rules is it sworn to enforce should be rejected by the Hearing Committee. In Disciplinary proceedings, ODC serves in the capacity of a prosecutor, whose independence and devotion to the cause of justice must be apparent to all, including those charged or under investigation. See RPC 1.7(b)(4) (“The lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party.”)
Heaven forbid that brazen political suggestions infect this proceeding
Finally, recent events raise two significant questions regarding claims that President Biden actually “waived” President Trump’s executive privilege. At a minimum, the President himself must have waived the privilege after having first been advised by counsel of the legal and constitutional implications of the purported waiver. RPC 1.6(e)(1) (“A lawyer may use or reveal client confidences or secrets: (1) with the informed consent of the client.’). 2.1 (“In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors, that may be relevant to the client’s situation.”) Where, as here, the Department of Justice claims that the President has waived the privilege, his predecessor and those who are bound by Rule 1.6 are entitled to demand proof that is was the President, not a subordinate, who authorized the purported waiver.
Recent events raise even more serious questions concerning President Biden’s cognitive capacity to waive President Trump’s privileges, or even to govern at all. There is abundant evidence that President Biden has suffered significant cognitive impairment and is no longer able to carry out the duties of his Office. This was most painfully demonstrated by the recently released report of Special Counsel Hur and the President’s press conference on February 8, 2024. While angrily disputing Special Counsel Hur’s assessment of his mental capacity, President Biden mistakenly called Egypt’s President Abdel Fattah el-Sisi the president of Mexico while mistakenly indicating Mexico had something to do with the southern border of Gaza. President Biden’s intemperate demeanor and compound confusion served only to confirm the Hur Report’s conclusions, which themselves confirm what is obvious to the whole world—President Biden suffers from significantly diminished cognitive capacity, stirring discussion of invoking the 25th Amendment. There is a more than reasonable basis for doubting that President has sufficient mental capacity to waive executive privilege for a former President, particularly given the thorny legal and policy considerations involved.
Words fail. Those with a strong enough stomach can access this “pleading” here. (Mike Frisch)