It Ain’t Over Till It’s Over

District of Columbia Disciplinary Counsel has responded to the latest Jeffrey Clark filing

Many, perhaps most of Mr. Clark’s arguments are based on the premise that the Rules of Professional Conduct simply do not apply to him. Apparently, this position extends to the normal procedural rules that apply to litigants before this Board: those rules do not apply to Mr. Clark either. In the guise of correcting the record and notice of supplemental authority, Mr. Clark seeks to extend his arguments beyond the word limitations on his brief—which the Board expanded—and the generous time allotted to him in oral argument, to make additional arguments before the Board. The Board should reject these pleadings, along with Mr. Clark’s efforts to add additional exhibits that Disciplinary Counsel never had the opportunity to confront at the hearing, which has been previously briefed.

In Disciplinary Counsel’s Reply Brief, we pointed out that Mr. Clark Opening Brief never addressed the Findings of Fact or set out a counterstatement of facts. His subsequent Reply Brief also failed to address the facts, other than to say in its opening sentence, “[t]he underlying facts on which this disciplinary proceeding is based have never been in dispute.” Respondent’s Reply Brief at 1. But in the oral argument, for the first time, his counsel appeared to present an alternative version of the facts. Disciplinary Counsel responded by pointing out the previous failure to challenge the facts and suggesting that a number of the factual assertions, made for the first time in oral argument, were not based in the record. Now in his post-argument attempt to “correct” the record, based on the faulty claim that the Proof of Concept letter was merely an effort to have the Georgia legislature further investigate unexamined allegations in Chairman Ligon’s Report, Mr. Clark tries to extend his alternative version of the facts. He is wrong, but the time for argument is over. A litigant is not entitled to make arguments never raised in his brief or to extend those arguments to a post-argument motion. This motion should be denied.

Similarly, the Notice of Supplemental Authorities is simply an effort to extend the argumentation about why Mr. Clark is above the restraints of the Rules of Professional Conduct. He has not brought to the Board’s attention authority that did not exist when he briefed and argued the case. National Ass’n of Mfrs. v. Dep’t of Defense is a 2018 case that simply contains general language about statutory construction. This somehow segues into a discussion of an Office of Legal Counsel opinion—already cited in Mr. Clark’s brief, (Brief of Respondent at 42), and written before the McDade Act—and from there into a rehash of the constitutional arguments and arguments about why the McDade Act does not apply to the District of Columbia, a well-beaten dead horse in these proceedings. Finally, Mr. Clark cites to the Supreme Court grant of certiorari in a case involving an FCC regulation, which occurred one month before the oral argument, and which is now for the first time raised in support of a request that the Board delay its report until after that unrelated case is decided. This argument may have just occurred to Mr. Clark, but it is new argument, not supplemental authority. The Board should strike this pleading as well.

(Mike Frisch)