Grasping At Straws
Perhaps the highlight of the Jeffrey Clark bar hearing to date was a question posed by the non-attorney member of the Hearing Committee as to, when Respondent Clark continually invoked the attorney-client privilege in response to questions, who was his client?
He quickly answered that the client is the former occupant of the White House.
As reported by NBC News
Patricia Matthews, a member of the three-person panel hearing the case, asked Clark who his client was in connection with his invocation of attorney-client privilege: “For whom were you the attorney?” she asked.
“For President Trump, the head of the executive branch, the sole head, the unitary head of Article Two, the executive branch of the United States government,” Clark said. (Typically, Justice Department employees say that their client is the United States of America, not one particular president.)
This response has generated a lot of commentary as it is a widely held view that a Department of Justice lawyer does not have such a relationship.
Interestingly, the leading precedent on the subject came when the late Ken Starr sought testimony from a lawyer in the Clinton White House.
So now we have respondent’s recently filed implicit challenge to the system for disciplining attorneys that has been in place since 1975.
From his pleading
Threshold Questions/Issues
These questions go to the nature of the D.C. Court of Appeals’ use of Hearing Committees comprised of two lawyers and one lay person and to the Board’s composition as consisting of seven attorneys and two lay persons. We need to understand the answers to these questions and requests, so that we can assess whether the process is consistent with the U.S. Constitution and applicable statutes, as is Respondent’s right:
- Are the Members of the Hearing Committee inferior federal officers under Article II, Section 2, Clause 2 or are they private actors?
2. If the Members of the Hearing Committee are inferior federal officers, have they taken an oath to the Constitution under Article VI, Clause 3? If so, when did they take such an oath and may evidence of the oath’s administration be shared with us, including by whom the oath was administered?
3. If the lay Member of the Hearing Committee is a private actor, is that Member acting in the capacity of a juror making findings of fact?
4. If the lay Member of the Hearing Committee is acting as a juror, we hereby request the ability to voir dire that Member before the hearing begins quasi-adjudicating the case in any fashion, including but not limited to taking testimony.
5. In detail, how were the Members of the Hearing Committee selected? We know the Board selected the Members. But were the Members selected randomly? Were the lawyer Members selected based on some merit-based criteria, and if so, what criteria and procedures were used? Or were they selected on an ad hoc basis and personal connections to the Board Members? What process was used to ensure that none of the Members had any personal conflicts of interest concerning Respondent, any of his attorneys, or former President Trump?
6. Do any Members have connections of any kind to Matt Kaiser, former Chair of the Board, who would have a conflict of interest as to this proceeding, given that he represents private clients who sued former President Trump in connection with January 6 allegations? If so, we would ask that those connections be disclosed.
7. Are the Members of the Board inferior federal officers under Article II, Section 2, Clause 2 or are they private actors?
8. If the Members of the Board are inferior federal officers, have they taken an oath to the Constitution under Article VI, Clause 3? If so, when did they take such an oath and may copies of the evidence of the oath’s administration be shared with us, including by whom the oath was administered?
9. If the lay Members of the Board are private actors making findings of fact, are those Members acting in the capacity of appellate jurors?
10.If the lay Members of the Board are acting as appellate jurors, we note that if review by the Board becomes relevant to this case, we reserve our right to voir dire any such Members before their review begins of a recommendation rendered by this body.
11.In detail, how were the Members of the Board selected? Were the lawyer Members selected based on some merit based criteria, and if so, what criteria and procedures were used? What process was used to ensure that none of the Board Members had any personal conflicts of interest concerning Respondent, any of his attorneys, or former President Trump?
12. Do any current Board Members have connections of any kind to Matt Kaiser, former Chair of the Board, who would have a conflict of interest in this proceeding given that he represents private clients who sued former President Trump in connection with January 6 allegations? If so, we would request those connections be disclosed.
Relief sought
Once the answers to those questions are provided, we can assess what relief may be available to from the D.C. Court of Appeals if the hearing goes forward. By contrast, if a recess in the hearing is required to obtain these answers, we would request the Hearing Committee to order such a brief recess.
Notably, there actually is a Board rule on challenges based on asserted claims of bias
7.22 Challenges to Hearing Committee Members
The identity of the Hearing Committee members shall be included in the notice of the hearing provided to respondent and Disciplinary Counsel. Any challenges to the members of the Hearing Committee must be made by affidavit alleging a personal bias or prejudice on the part of the Hearing Committee member against the party submitting the affidavit. The affidavit must be accompanied by a motion for disqualification made to the Board, which will be decided by the Board Chair. The affidavit must state facts and reasons upon which the allegations of bias or prejudice are based and must be accompanied by a certificate executed by the party submitting the affidavit, or counsel for such party, stating that the challenge is made in good faith. The affidavit must be submitted to the Office of the Executive Attorney at least seven days prior to the date set for the hearing or the challenge shall be deemed waived. A Hearing Committee member
appointed pro hac vice within seven days of the hearing to replace a previously named member may be challenged without regard to the seven-day notice ordinarily required. Emergency motions filed less than seven days before the beginning of the hearing will be considered only if the factual basis for the motion could not have reasonably been known before the deadline.
Raising such claims in the middle of a hearing seemingly ignores the above rule.
Bias is not shown by a committee member asking a question that Respondent’s counsel does not like.
The next hearing day should be quite interesting.
Update: Here is a helpful reminder about the authority of the Court of Appeals to apply its disciplinary apparatus to Mr. Clark
We begin by addressing Mr. Clark’s threshold objection, which is that this court and the Board on Professional Responsibility lack jurisdiction to discipline him for any misconduct he committed in his role as an Assistant Attorney General in the Department of Justice. We believe this objection is without merit.
It is undisputed that Mr. Clark chose to be, and at all relevant times has been, a member of the Bar of the District of Columbia. Congress empowered this court to exercise plenary disciplinary authority over the members of our Bar, and this court has exercised that authority. As our Bar Rules state, “[a]ll members of the District of Columbia Bar . . . are subject to the disciplinary jurisdiction of this Court and its Board on Professional Responsibility.” And as the Bar Rules also state,
The license to practice law in the District of Columbia is a continuing proclamation by this Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and an officer of the Court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law.
Accordingly, acts or omissions by an attorney in violation of the Rules of Professional Conduct “shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship.”
There is no exemption or immunity from bar discipline under our Rules for D.C. Bar members who violate those Rules while serving as attorneys for the federal government, in the Department of Justice or elsewhere. In fact, both Congress and the Department of Justice have made this clear.
And if Respondent is engaging in stalling tactics in hope of a future pardon, consider this precedent. (Mike Frisch)