Briefing Now Complete In Jeffrey Clark Bar Case

The brief of Jeffrey Clark before the District of Columbia Board on Professional Responsibility – and the reply brief of Disciplinary Counsel – have recently been filed.

Mr. Clark contends that he simply was providing candid legal advice to a client and that the proposed suspension of a two-year suspension is too harsh.

Stripped to its essentials and shorn of the partisan politics that drives it, this case is about the duty that attorneys owe to a client who rejects their advice because he questions their diligence, competence, and loyalty. The very first paragraph of ODC’s Opening Brief concedes that, at all times relevant to ODC’s Charges, President Donald J. Trump sought, and received in his official capacity, legal advice and counsel about alleged 2020 federal election “irregularities” from at least three attorneys employed by United States DOJ: Acting Attorney General Jeffrey Rosen, Principal Associate Deputy Attorney General Richard Donoghue, and Respondent, Assistant Attorney General Jeffrey B. Clark. ODC thus concedes that Trump, acting in his official capacity, had an attorney-client relationship with his DOJ attorneys. ODC Brief at 1 ¶1. Just as in Trump v. U.S., 144 S.Ct. 2312, 2334-2335 (2024), ODC “does not dispute that [the Charges] regarding the Justice Department involve Trump’s “use of official power,” and thus “plainly implicate Trump’s ‘conclusive and preclusive authority” to consult with any Justice Department attorney to seek answers to his questions. U.S. Const. art. II §2, cl. 2 (Opinions Clause).

The lengthy brief ends with an assertion of Respondent’s “unquestioned high motives” and asks that, if any sanction be deemed appropriate, it be a “private admonition.”

Notably, there is no such sanction in the District of Columbia. 

Whether Respondent possessed a “high motive” or not, the issue has been put into question. The hearing committee found he was “sincere,” but I believe Disciplinary Counsel has challenged that finding.

Disciplinary Counsel contends that the recipient of Clark’s advice was not his client as the Department of Justice represents the United States not an officeholder and that disbarment should be imposed.

Mr. Clark has raised a new argument, never considered by the Hearing Committee, as the principal argument in his brief. But his argument is opaque, even inarticulate, so summarizing it is difficult. The argument starts with the faulty premise that President Trump, not the United States, was the client of Mr. Clark and other Justice Department lawyers. It then goes on to argue that under Rules 1.2 and 2.1, Mr. Clark had a responsibility to provide the best advice that he could to his client, President Trump, and that was all that he did. It somehow conflates providing legal advice with advocating a course of conduct premised upon “facts” for which there was no basis. Finally, the argument focuses almost exclusively on the January 3, 2021 Oval Office meeting—the meeting that put an end to Mr. Clark’s attempt to send a dishonest letter intended to disrupt the electoral process—without looking at the entire sequence of events and the dishonest and disruptive course of conduct upon which Mr. Clark sought to have the Department of Justice embark.

Oral argument is scheduled to be heard on December 19, 2024 at 2 pm and will be live streamed.

Link here.  Click on Cases of Public Interest. (Mike Frisch)