Two Year Suspension With Fitness Proposed For Jeffrey Clark

The Hearing Committee Report in the Jeffrey Clark District of Columbia bar discipline matter matter has been released

As set forth below, we find Disciplinary Counsel has proven by clear and convincing evidence that Mr. Clark attempted dishonesty and did so with truly extraordinary recklessness. Mr. Clark was an environmental and civil litigator. He had no experience with criminal investigations and in his position as Acting Assistant Attorney General had no responsibility for and no involvement in any investigations relating to election matters. At the eleventh hour of the Trump Administration, he sought to take over responsibility for investigations into election matters, and relying on what was, at best, a fraction of the information any reasonable attorney would expect to act on, to insist on sending a letter – with significant false and misleading statements – to officials in the State of Georgia, urging extraordinary action to intervene in the electoral process. He did this notwithstanding the emphatic statements that the letter was false from those within the DOJ most knowledgeable about the situation, and warnings from the advisors closest to President Trump that sending the letter would be not just a mistake, but a catastrophic event leading to the resignation of a huge swath of the Justice Department and riots in the streets. Nonetheless, he pushed for this letter to be sent even after President Trump himself said “no.”

As explained below, we accept the testimony that Mr. Clark was sincere in his belief that sending the letter was appropriate. We accept that Mr. Clark believed he was in a unique position to act and believed it was his duty to do so. But his sincerity of belief does not make him less reckless. To the contrary, we conclude that his personal beliefs blinded him from objectively assessing the facts and the reality of his proposed course of action, and caused him to rationalize a broader role for the Department of Justice, failing to distinguish President Trump from candidate Trump. Mr. Clark’s reaction to the circumstances completely overtook his judgment.

As both Disciplinary Counsel and Mr. Clark note, we have limited guidance on what sanction is appropriate for this extraordinary conduct, and we cannot endorse what either side proposes. Disciplinary Counsel admits that the law requires us to look for comparable sanctions, but urges that there is nothing comparable and we should consider the broader circumstances beyond that charged or proven. Mr. Clark cites no case law or factual considerations but urges that “[t]here should be no discipline imposed in this case. But if discipline is recommended by the Committee, it should be de minimis or minor considering all relevant circumstances.” Mr. Clark’s Br. at 83.

As explained below, we believe that a two-year suspension from the practice of law with a requirement to show fitness for readmission is an appropriate sanction for what was charged and proven.

An observation on rhetoric

We agree with Mr. Clark that Disciplinary Counsel engages in “emotionally overheated rhetoric,” when he calls Mr. Clark’s conduct “the second greatest internal threat” to democracy, behind only the Civil War. Mr. Clark’s Br. at 79-80. But Mr. Clark does too when he seeks to cast any attempt to hold Mr. Clark accountable under the ethics rules he took an oath to follow as a “systematic campaign” involving “a dictatorial crushing of dissent.” Id. at 80-81.

Our job, however, is not to embrace that passion. It is to issue a report and recommendation based on what was charged and proved by the evidence.

The committee lays out the evidence of those consequential post-election interactions in and between the Department of Justice and the White House in painstaking detail

This testimony is credible. Mr. Rosen and Mr. Donoghue were not President Trump’s sworn enemies. They were top officials President Trump had appointed. In the preceding three weeks, President Trump had made Mr. Rosen Acting Attorney General after offering that post to Mr. Donoghue. It is not surprising that Mr. Rosen and Mr. Donoghue would find it difficult to understand the efforts by the White House from what to them was “out of left field,” Tr. 117- 18, to now involve the acting head of the Civil Division who had no experience with criminal investigations and no prior role in the election investigations.

There is no evidence that Mr. Clark ever “investigated” signature verification in the sense of finding out what information the Justice Department had obtained or contacting witnesses or otherwise attempting to obtain any information that was not public.

Respondent’s procedural contentions were rejected in toto

During the preparation for the hearing, on the night before the hearing began, during the hearing itself, and afterwards in briefing, Mr. Clark objected to having this matter proceed at all, or having this matter proceed without additional delays, on numerous grounds. Mr. Clark asserts he cannot be subject to any disciplinary hearing or any disciplinary hearing under the system that the District of Columbia uses for all of its disciplinary hearings. He asserts that he was “denied a fair hearing,” because the Justice Department did not approve his requests to have some witnesses testify; because he was not able to delay the hearing pending his criminal trial in Georgia and had to make his assertion of a Fifth Amendment privilege not to testify on a question-by-question basis and because he was not permitted to rely on evidence that did not exist at the time he acted to show the basis for his action. He claims that he received insufficient notice of the charges against him, and (in a Supplemental Brief filed after argument closed) asserts that he is entitled to Presidential immunity from his bar obligations, and that bar discipline requires a trial by jury. We have reviewed all of the arguments Mr. Clark asserted and do not believe any are well taken.

Fitness

Having considered all of the evidence in this case, we have no question that Mr. Clark has the talent and intelligence to serve as a lawyer. But his apparent inability to acknowledge any concern about the risks involved in his extraordinary conduct leave us with “real skepticism, not just a lack of certainty,” Guberman, 978 A.2d at 213, that, were the situation to arise again, he would act carefully and thoughtfully. It is admirable, not wrong, to believe in a cause; but it is wrong and dangerous to the public and our legal system to let that belief operate to the exclusion of judgment.

Accordingly, we believe that before he can be readmitted, Mr. Clark should demonstrate that he has reflected on the conduct in which he engaged, appreciated its risks, and is ready to provide the independent judgment that service as a lawyer requires.

The 213 page report was signed by Merril Hirsh, Chair, Patricia Mathews, public member and Rebecca Smith, attorney member.

Update: Last Tuesday, Clark’s attorneys filed a lengthy motion directed to the Board on Professional Responsibility seeking a stay of proceedings based on his contention that the entire structure of D.C. bar regulation is unconstitutional and has “irreparably injur[ed]” him.

If you want the privilege of bar membership, you are subject to the rules and procedures (established for over 50 years) that accompany that privilege. (Mike Frisch)