A District of Columbia Bar disciplinary panel held a pretrial hearing last month to prepare for the upcoming disbarment trial against President Donald Trump’s former DOJ official Jeffrey Clark. Clark (pictured above) is also being prosecuted in Georgia and is an unindicted co-conspirator in Special Counsel Jack Smith’s federal prosecution, due to a letter Clark drafted to Georgia election officials after the 2020 election advising them of options the Georgia Legislature could take to address the concerns about election illegalities. The letter was never sent nor circulated.
The District of Columbia Court of Appeals Board on Professional Responsibility Ad Hoc Hearing Committee met by Zoom on December 18, 2023 with Clark, his counsel, and the D.C. bar prosecutors, known as the Office of Disciplinary Counsel (ODC) to discuss the extent that Clark could plead the Fifth Amendment during the trial, due to the risk of incriminating himself in the criminal prosecutions. Clark requested to postpone the disbarment trial until after the criminal trials, as is standard practice when both types of proceedings arise at the same time, but the disciplinary court refused.
The hearing also discussed whether information about events that occurred after the J6 protest would be admissible. Merrill Hirsh, chair of the committee, ran the hearing.
Bar prosecutor Hamilton P. Fox was dismissive of Clark’s Fifth Amendment concerns, stating, “If he really had any evidence that he was aware of, of January 3, 2021 that caused him concern as to the election improprieties in Georgia, one would think he would want to produce that because that will be exculpatory.” Fox admitted that if Clark invoked the Fifth Amendment in response to some questions, he might “argue that you should infer that he has done something wrong.”
Clark’s attorney Charles Burnham responded that he was requesting that Clark be allowed to invoke the Fifth Amendment across the board, not just for certain questions. He said the D.C. Court of Appeals has not firmly established yet whether bar disciplinary proceedings are quasi-criminal or leaned more civil, but he believed the Supreme Court case Ohio v. Renner was likely a controlling case the court will look to as precedent. He said Fox cited landlord-tenant cases for the other way the court could decide, which weren’t persuasive since the topic was so different.
Burnham also cited State Bar of Michigan re Woll as precedent. He explained that the Michigan Supreme Court held that “bar disciplinary cases are highly penal in nature, though falling short of true criminal cases. They describe them as quasi-criminal. Therefore, maybe not all, but many of the important safeguards of the criminal defendant apply to bar discipline defendants as well and, therefore, the in re Woll court and others conclude, this is the rule in California, adverse inferences are categorically inappropriate, which is the rule we’re contending here.”
Burnham pointed out that even Hirsh cited the D.C. Court of Appeals case In re Artis, which held that bar disciplinary proceedings are quasi-criminal. He noted that the D.C. Court of Appeals case In re Burton somewhat touched on the issue. There, “the hearing committee in that case declined to draw an adverse inference,” he said, which wasn’t appealed by the ODC.
Burnham said “the standard practice in the criminal defense bar” is to take the Fifth to every question. “You can’t sit there and take the Fifth to, you know, 35.8 percent of the questions,” he said. “The law doesn’t permit it.” When Clark testified to the January 6th committee in Congress, he took the Fifth for almost every question.
During Trump’s former attorney and constitutional legal scholar John Eastman’s trial, he took the Fifth multiple times, and the ODC did not use it against him.
Next, Hirsh discussed whether evidence from after January 3, 2021, the date that Clark drafted the unsent letter to Georgia officials, would be admissible. Hirsh characterized the ODC’s argument about Clark, “[H]e falsely claimed that the Justice Department had reached certain conclusions about what took place in Georgia and continued to do that even after he was told, no, the Justice Department didn’t reach those conclusions about what happened in Georgia.”
Clark drafted the letter for Trump and other DOJ officials around the time Trump temporarily replaced Attorney General Jeffrey Rosen with Clark, due to Rosen undermining Trump.
Clark’s attorney Harry MacDougald responded to Hirsh and said the reason later evidence was relevant was because Clark had “suggested that there should be additional investigation. … Later on when the rock is turned over, all kinds of things are found. That goes to whether Mr. Clark made a false statement.” MacDougald said the decisionmaking regarding the letter was fluid; it didn’t make sense to only look at a snapshot in time regarding whether the letter accurately represented the DOJ’s position. Clark’s unsent letter said “the Department of Justice believes additional investigation is warranted.”
He noted that Clark did not use the word “fraud” in his letter. He said that while the DOJ claimed they investigated and found no election irregularities, “the two Republican members of the Fulton County Election Board voted against certification twice” because “there was no absentee ballot signature verification in Fulton County, the very thing that President Trump had wanted Mr. Clark to look into.” The DOJ did not look into 2020 election irregularities since Attorney General Bill Barr refused to grant permission for U.S. Attorneys that requested authorization to investigate it.
MacDougald added that Clark’s unsent letter “linked to a Georgia State Senate Committee Chairman’s support; Senator Wiggins’s committee that held a hearing on December 3rd and published a report, and in that report described what some of the evidence presented to them was and made recommendations for further investigation, decertification of the election, forensic audits of the machines and so on, and those things supported the letter that Mr. Clark prepared.”
MacDougald concluded, “[W]e argue forcefully that it is proof of the incoherence of ODC’s theory that we cannot find a case anywhere, ever, in which a lawyer was disciplined over a draft letter that was never sent.”
Hirsh pushed back, “The question is, is this case about trying the Georgia election or is this case about trying what seems to be in the complaint?”
Fox retorted, “Everybody, every, you know, court that’s heard this type of evidence has rejected it…it’s irrelevant and it’s the kind of thing that Rule 403 is designed to prevent from being introduced.” He added that otherwise “we’re just going to end up, you know, spending days and days and days litigating an election contest, all of which have already been decided.”
During the disbarment trial of Trump’s former attorney and constitutional legal scholar last year, witnesses testified about a report produced by John Droz and a team of other statistical PhDs, which found that of the 92 lawsuits filed over the 2020 election, only 31 were decided on the merits, and of those 31, Trump or the GOP plaintiffs prevailed on 23.
Hirsh asked MacDougald if he wanted to respond. MacDougald said, “[T]he Department of Justice is not a monolith. The officers of the Department of Justice often disagree with one another and here we’re talking about a disagreement over whether there was evidence of irregularities. … Now the recommendation to conduct an investigation that’s not actually then conducted, and if you find out later that if you had conducted it, it would have found all kinds of stuff, that’s inherently logically relevant to whether he had a good faith basis, whether he had a reasonable belief.”
MacDougald cited some of the evidence of election irregularities, “There’s evidence that there are 17,852 missing ballot images in the second machine count.”
Finally, Hirsh proposed that the examination of witnesses be done by written questions, not verbally in court. Clark’s counsel objected, stating it would put them at a disadvantage.
Clark submitted his list of 42 proposed witnesses for trial, which include several well-known names. They are mostly cyber security experts and former Trump Chief of Staff Mark Meadows, Representative Matt Gaetz (R-FL-01), former Attorney General, Ed Meese, Pennsylvania State Senator Doug Mastriano (R-33), Catherine Engelbrecht or Gregg Phillips of True the Vote, Stan Young or Eric Quinnell, Garland Favorito, Joe Rossi, Walter Daugherity, Jeffrey O’Donnell, Harry Haury, and Kevin Moncla. Several of those on Clark’s list testified in the disbarment trial of Eastman.
The trial was scheduled to begin in early January, but due to some undisclosed reasons is being rescheduled. A status conference is scheduled for 10:15 a.m. on January 16. The court has refused to allow Clark to transfer the trial to federal court, despite the fact federal law states that federal officials are to be tried in federal court. Clark has raised just $66,249 so far out of the $500,000 needed to defend himself in the three matters. The pleadings in Clark’s case, along with those to disbar Rudy Giuliani, are located here.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
Photo “Attorney Jeffery Clark” by Jeffery Clark.
