Disciplinary Counsel Seeks Disbarment of Jeffrey Clark

District of Columbia Disciplinary Counsel has filed its Opening Brief in the Jeffrey Clark bar discipline matter, arguing that the Board on Professional Responsibility should overturn fact findings and legal conclusions of the Hearing Committee and recommend that the Court of Appeals disbar him

Following the 2020 election, the Department of Justice actively investigated allegations of irregularities that might have affected the results. By December 1, it had found no fraud that might have affected the outcome, and Attorney General Barr said so. President Trump refused to accept this fact, and once Mr. Barr announced his departure, the President began to pressure the new leadership of the Department to announce that the election was corrupt. The Department officials with the most knowledge of the election investigations refused to accede to the President’s pressure, so he found someone who would.

Jeffrey Clark was the Assistant Attorney General in charge of the Environmental and Natural Resources Division and the acting head of the Civil  Division. He had no criminal investigative experience and had played no role in the Department’s election investigations. He was, however, willing to do the President’s bidding, and he composed a letter to Georgia officials, a “proof of concept,” which was also meant to serve as a template for several other states. The letter said that the Department was investigating election irregularities and falsely claimed it had identified significant concerns that might have affected the outcome of the election in Georgia. The letter also falsely said that Georgia had certified two sets of presidential electors, one for Mr. Biden and one for President Trump, and had submitted two sets of ballots to Congress. It urged the Georgia legislature to assemble in special session, conduct an inquiry to determine who had won the election, and submit ballots to Congress based on that determination.

At the time Mr. Clark proposed to send this letter, the Governor of Georgia had already certified the election for Mr. Biden, the Electoral College had met and declared Mr. Biden to be the winner, and the only remaining step to finalizing the election results was Congress’s certification of the electoral vote, which was to occur little more than a week after Mr. Clark drafted his letter. The leadership of the Department refused to send the letter because it contained falsehoods. Therefore, President Trump proposed, and Mr. Clark agreed, that he would become Acting Attorney General in order to do so. This plan was thwarted only because in a contentious Oval Office meeting, the entire leadership of the Department plus the White House Counsel and his deputy threatened to resign if Mr. Clark were appointed.

The Hearing Committee found that Mr. Clark attempted to engage in conduct involving dishonesty by trying to send the false letter he had drafted. It found that he acted with reckless dishonesty but concluded that it could not find clear and convincing evidence of intentional dishonesty because witnesses testified that Mr. Clark seemed sincere in his views. The Committee, however, did not have the benefit of a first-hand assessment of Mr. Clark’s sincerity because he invoked his privilege against self-incrimination and refused to provide any substantive testimony. The Committee also concluded that, since intentionality had not been proven by clear and convincing evidence, a sanction other than disbarment should be imposed—i.e., a two-year suspension with a fitness requirement.

In finding that intentionality had not been proven, the Committee refused to infer from Mr. Clark’s invocation of the privilege that he had no actual evidence of election irregularities that would have justified sending the letter. It also ignored that he had never been able to tell any of the witnesses what these irregularities were, that he refused a superior’s order to discuss the Georgia investigations with the United States Attorney in Atlanta who had conducted them, and that it was an objective fact that—contrary to what Mr. Clark’s letter claimed—Georgia had not appointed two sets of electors or submitted two sets of ballots. The Board should conclude that Mr. Clark’s dishonesty was intentional.

The Committee did not conclude that by attempting to call the state legislature into special session to conduct an unjustified inquiry, a week before the Congress was required to certify the election results, Mr. Clark attempted to substantially interfere with the administration of justice. It reasoned that there was no identifiable case or tribunal with which Mr. Clark had interfered. In reaching this conclusion, the Committee failed to understand that Mr. Clark was charged with an attempt, and that he tried, but failed, to persuade the Georgia legislature to convene as a tribunal to determine which slate of electors and ballots should be submitted to Congress. Because there was no special session, the tribunal was not convened, and there was no identifiable case—but not for Mr. Clark’s lack of effort. In short, he attempted to substantially interfere with the administration of justice, and the Board should so conclude.

Finally, the only appropriate sanction for Mr. Clark’s misconduct is disbarment. Anything other than the ultimate sanction is an insufficient condemnation of a lawyer who used his law license in an attempt to disenfranchise the majority of Georgia voters and who failed to adhere to his oath to support the Constitution, which requires that the candidate receiving the majority of the electoral vote be elected President. Other lawyers who attempted to bring about similar consequences, Rudoph Giuliani and John Eastman, have been found to deserve disbarment. Mr. Clark should likewise be disbarred.

Disciplinary Counsel vigorously disputes the Hearing Committee’s observation that his characterization of Respondent’s conduct was “overheated rhetoric.”

To the contrary

A reluctance to reach hard conclusions in a controversial case in order to assuage doubts about the fairness of the proceeding—Solomonic baby-splitting—is not a principled method of adjudication. That is a political approach, not the application of neutral principles. A neutral approach to reaching legal conclusions cannot tolerate putting a thumb on the scale to provide the assurance of fairness any more than it can tolerate doing so to reach a desired result. The Hearing Committee reached a sanction of less than disbarment by giving Mr. Clark every benefit of the doubt. For example, it did not consider the many “quite strained” (or as the Court of Appeals said, quoting the district court, “absurd”) legal arguments Mr. Clark advanced in an effort to derail these proceedings. See In re Clark, 311 A.3d 882, 888 (D.C. 2024) quoting In re Jeffrey B. Clark, 678 F. Supp 3d. 112, 127 D.D.C. 2023). The Committee acknowledged that the way a respondent conducts himself in disciplinary proceedings can be taken into account, citing In re Yelverton, 105 A.3d 413, 430 (D.C. 2014) and In re Lattimer, 223 A.3d 437, 453 (D.C. 2020) (per curiam). HCR at 202-203. See also In re Doman, 314 A.3d 1219, 1235 (D.C. 2024) (sanction based in part on many unreasonable arguments advanced by respondent, an adamant refusal to accept responsibility). But it declined to do so, lest it chill advocacy.

The Hearing Committee failed to consider the magnitude of Mr. Clark’s misconduct. He sought to pervert the operations of the Department of Justice for the benefit of a political candidate in a manner that, if successful, would have undermined a basic principle of our democratic republic—the candidate with the most electoral votes wins and the losing candidate acquiesces to the results of the election. It blinks reality not to find that he attempted to bring about this result by making intentionally false statements on behalf of the Department in his Proof-of- Concept letter. But even under the Hearing Committee’s more pinched view, he was exceedingly reckless with the truth in a context where he should have been exceedingly careful. The honor of the profession, the integrity of the Court, and the protection of the public demand that such a lawyer be disbarred.

The public documents in the matter can be accessed at this link.  Click on the link to Cases of Public Interest.(Mike Frisch)