Disbarment Proposed For Jeffrey Clark

District of Columbia Disciplinary Counsel has filed its proposed findings of fact, conclusions of law and recommendation for discipline in the Jeffrey Clark matter.

The pleading can be accessed here by following the links to the Respondent

The 2000 presidential election was a much closer contest than in 2020. Omitting Florida, the electoral vote stood at: Gore 266; Bush 246. Florida’s 25 electoral votes would be decisive, but out of almost six million ballots cast, Governor Bush led by 1,784 votes, less than one-half of a percent, and after the automatic machine recount, his margin diminished even further. Bush v. Gore, 531 U.S. 98, 100-101(2000). Vice President Gore contested the election pursuant to the appropriate state procedures. The lawyers who litigated that election contest, although under tremendous pressure, carried out their responsibilities in the nobliest traditions of the profession. When the Supreme Court put an end to the litigation, the lawyers shook hands, and Vice President Gore conceded the election.

The lawyers who contested the 2020 election on behalf of President Trump, far from upholding the nobliest traditions of the profession, betrayed their ethical obligations. At President Trump’s direction, they employed any means necessary to keep him in office. This included frivolous civil rights actions filed in federal court seeking to set aside the results of lawful elections. See In re Giuliani Board Docket No. 22-BD-027 (BPR HCR July 7, 2023). It included dishonest legal advice to Vice President Pence in an effort to persuade him to unilaterally reject certain states’ slate of electors and delay or recess the electoral count during the January 6, 2020 Joint Session of Congress. In re Eastman, Case No. SBC-23-0-30029-YDR (State Bar Court of California, March 27, 2024). It also included Jeffrey Clark’s attempt to replace the leadership of the Department of Justice so that he could, as Acting Attorney General, make dishonest representations about findings of election fraud and irregularities in an attempt to have certain states send two slates of electors to the January 6 Joint Session.

These efforts all failed because the legal profession proved to be an insurmountable barrier to these lawyers’ misconduct. Judges unanimously rejected frivolous lawsuits. The lawyers advising Vice President Pence (and the Vice President himself) rejected unconstitutional, crackpotschemes to overturn the results of the election. Other lawyers in the Department of Justice and the White House, in defiance of President Trump’s wishes, rejected Mr. Clark’s dishonest attempt to create national chaos on the verge of January 6. It was nevertheless a very near thing. It took a last-minute showdown in the Oval Office on January 3 to reverse Mr. Clark’s appointment as Acting Attorney General and frustrate his scheme.

It is not enough that the efforts of these lawyers ultimately failed. As a profession, we must do what we can to ensure that this conduct is never repeated. The way to accomplish that goal is to remove from the profession lawyers who betrayed their constitutional obligations and their country. It is important that other lawyers who might be tempted to engage in similar misconduct be aware that doing so will cost them their privilege to practice law. It is also important for the courts and the legal profession to state clearly that the ends do not justify the means; that process matters; and that this is a society of laws, not men.

Jeffrey Clark betrayed his oath to support the Constitution of the United States of America. He is not fit to be a member of the District of Columbia Bar.

Attitude as an aggravating factor

Rather than grapple with the actual issues in this case, Mr. Clark put on a case of misdirection, calling not a single witness who had any personal knowledge of his conduct. His defense seemed to be that if the Department of Justice had continued to investigate allegations raised by these witnesses after December 28, 2020, it might have uncovered some evidence of election fraud that might have affected the results.

This “defense” ignored the fact that Mr. Clark was claiming that the Department already had, as of December 28, “significant concerns” (by January 3, “evidence of significant irregularities”) that might have affected the election results. In short, he tried to convert the issue at the hearing from what he and the Department were aware of as December 28 or January 3 into what they might have found out if they continued to investigate. But that was not the issue. The issue was whether Mr. Clark had a basis for his proposal to throw a spanner into the workings of the process of certifying the election as of the time of the Proof-of-Concept letter.

This misdirection strategy was coupled with continual argument that he could not receive a fair hearing. See, e.g., Tr. 38 (this case was filed as part of “a campaign to destroy conservative lawyers who are willing to raise issues about the election even in privileged and confidential deliberations”) Tr. at 1912 (“in Washington D.C., how does someone that’s Trump adjacent get a fair hearing …”), 1982 (“Because activist groups, they want to destroy their enemies.”), 2071 (“You must have faith in the election [results], or you cannot be a lawyer in the District of Columbia.”).

Mr. Clark became combative and self-righteous when asserting privileges on the stand, and he tried on several occasions to make legal arguments in lieu of his three attorneys. See Tr. 503, 511-512 (Clark). The Hearing Committee can—and should—consider Mr. Clark’s demeanor as additional evidence of his failure to acknowledge the wrongfulness of his misconduct. See generally Bates v. Lee, 308 F.3d 411, 421-422 (4th Cir. 2002) (consideration of criminal defendant’s demeanor during trial when assessing guilt did not violate Fifth Amendment). Although he was represented throughout these proceedings, Mr. Clark explicitly named himself as both lawyer and respondent, and identified himself as part of his defense team. Tr. 512 (Clark). How his defense was litigated should, therefore, be attributed to him. The inescapable conclusion is that Mr. Clark believes he did nothing wrong.

Well stated. 

No lesser sanction should be imposed

During closing argument, the Chair asked Disciplinary Counsel to address what lesser sanction would be appropriate if the Hearing Committee rejects the recommendation of disbarment. While we recognize an obligation generally to assist the Committee, for two reasons we cannot comply with this request—other than to list the factors the Court has said should be taken into consideration, which we have done. First, the practical reason that we cannot help the Committee further is that, with the exceptions of Mr. Giuliani in this jurisdiction and Mr. Eastman in California, no lawyer of whom we are aware has engaged in comparable misconduct. The recommended discipline for Mr. Giuliani and Mr. Eastman, although charged with violation of different rules, was disbarment. Second, we believe it would be inconsistent with our duty to the disciplinary system and the profession to even suggest that a sanction other than disbarment should be contemplated for this respondent. Mr. Clark’s misconduct was part of a concerted effort to overturn the will of the voters in the 2020 presidential election. He attempted to usurp the leadership at the Justice Department and misuse the Department’s authority to help accomplish that result, despite all evidence contradicting his position. He had to know that what he was doing was wrong. But Mr. Clark is clearly unwilling to recognize the extreme magnitude of his misconduct. That refusal should be unsettling to us all. It—along with the gravity of potential consequences of his misconduct to the foundations of our country—supports disbarment and only disbarment as the right and necessary sanction to uphold the integrity of the courts and the profession, to protect the public, while deterring Mr. Clark and others from engaging in this sort of misconduct.

(Mike Frisch)