Donald Trump’s former DOJ official, Jeffrey Clark, is fighting a recommendation from the D.C. Bar’s disciplinary panel to discipline him over his concerns about illegalities in the 2020 election. Last month, he filed a Post-Hearing Brief challenging a nonbinding preliminary finding of culpability for drafting a letter that was never sent to Georgia officials advising them of their options in dealing with the irregularities.
The hearing panel found that Clark engaged in at least one of the following two types of actions: conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct that seriously interferes with the administration of justice, Rules 8.4(c) and (d) of the Rules of Professional Conduct. Those ethics rules have been accused of being broad, vague, and unconstitutional. State bars frequently use them to target conservative attorneys.
In his 346-page brief, Clark primarily responded to the Office of Disciplinary Counsel’s (ODC) Finding of Facts which he disagreed with. Authored by Clark’s attorney Harry MacDougald, the brief laid out how the “case arises from a factual and policy dispute among the highest-ranking lawyers in the Justice Department … The only person with authority to resolve the policy dispute was President Trump, and he did so in a meeting in the Oval Office. The President never complained about Mr. Clark’s advice or conduct.”
During the disciplinary hearing, Professor Don Elliott of Yale Law School said that Clark had a “sufficient factual basis” to propose the draft letter. Clark also pointed out, “There is no evidence of or citation to any prior case in the District of Columbia or anywhere in the United States in which a lawyer was disciplined over a discussion draft document that was not sent and never left the office.” Clark has referred to the discipline as being punished for a “thought crime.”
Much of the brief focused on Trump’s disagreement with former acting Attorney General Jeffrey Rosen and his former deputy Richard Donoghue over investigating election illegalities in Georgia. Clark (pictured above) followed Trump’s instructions on what to do, unlike the other two, and the D.C. Bar held that against him, asserting that Rosen and Donoghue were correct in ignoring the wrongdoing against Trump’s wishes. Since Clark aligned with Trump on the issue of looking into election corruption instead of ignoring it like the other two, the D.C. Bar claimed he violated ethics rules.
The brief called out Attorney General Bill Barr for not telling the truth. “DOJ did not investigate any non-fraud or non-civil rights irregularities in the election despite the Barr Memo of November 9, RX-559, promising to investigate ‘election irregularities,’” Clark said.
Much of the disagreement between the three was over whether to investigate the complete lack of signature verification in Fulton County, which violated Georgia state law. There were 146,029 absentee ballots counted, but only six were rejected for signature mismatch. Biden won the state by 11,779 votes. “The two Republican members of the Fulton County Election Board voted against certification twice for several reasons, including the lack of any absentee ballot signature verification,” the brief said.
Rosen and Donoghue disagreed with Clark on sending his letter to Georgia officials. Rosen met with Trump about it and convinced him not to send it. “Once the President made his decision not to send the draft letter, that was the end of the matter,” the brief said.
Clark pointed out, “Proposing DOJ take a different position on disputed opinions is not false or misleading. … Mr. Clark was free to form different opinions and to propose them in confidential internal discussions.” Similarly, “Proposing to pursue a course other than DOJ’s ‘practice’ is not dishonest, nor is it attempted dishonesty.”
He added, “It is not misleading to propose that DOJ take a position that the delay in Trump’s Georgia election contest case was troubling. Whether it was troubling was a matter of opinion. Whether to say so publicly was a matter of opinion. … It is possible for the United States to express concern about the outcome of litigation to which it is not a party.”
Clark said, “Rosen and Donoghue did not cite any preexisting, written policy on the topic and none is in evidence. … Furthermore, if Rosen and Donoghue can announce DOJ policy on their mere say-so then so can any other officials in their positions. … This inherently means that Mr. Clark as the Acting Attorney General after January 3, 2021, could have changed the purported unwritten policy.”
Trump declared Clark the acting attorney general briefly on January 3, 2021, frustrated with Rosen’s behavior on the issue.
“At that point, Mr. Clark’s position became the DOJ position,” the brief stated, adding, “ODC concedes that Mr. Clark became Acting Attorney General on January 3, 2021 in its own proposed findings.”
It went on, “Mr. Clark therefore inherently ratified the statements in the draft letter about DOJ’s view of 2020 election irregularities by virtue of the authority he had been given by the President.”
Clark pointed out that “there was testimony in this case from Representative Gaetz and Harry Haury that [former Attorney General Bill] Barr actively suppressed investigations into election irregularities in Florida and fraud affecting Pennsylvania.”
He said Barr’s investigation into the 2020 election was inadequate since “[b]y excluding irregularities from the scope of the investigations, DOJ and the FBI did nothing to look into absentee ballot signature verification in Fulton County, Georgia. … Fulton County did not do any absentee ballots signature verification at all, but counted 146,029 absentee ballots anyway. … By only investigating fraud, DOJ overlooked irregularities sufficient to put the outcome of the election in doubt, such as the failure of Fulton County to carry out absentee ballot signature verification.”
Clark said Rosen and Donoghue weren’t forthcoming with Trump. “Rosen and Donoghue did not tell the President that they had failed and refused to look into absentee ballot signature verification in Fulton County, or the indications of fraud that were reported to DOJ…” He said, “The President asked Rosen and Donoghue to look into absentee ballot signature verification in Fulton County in a phone call on December 27, 2020.”
The Ligon Report was a Georgia Senate subcommittee that reviewed all the election wrongdoing in Georgia and concluded that the election should not have been certified. The ODC claimed that Clark relied on inaccurate assertions of fraud in the report. He retorted in the brief, “The Ligon Report referred to irregularities of a nature DOJ refused to investigate, and so DOJ’s position that there was no fraud does not contradict any evidence of irregularities reported in or conclusion in the Ligon Report.”
The ODC cited Donoghue’s testimony that “‘process issues’ are beyond the power of DOJ to investigate on the theory such an issue is not one of federal law but only of state law.” However, Clark responded that the U.S. Supreme Court held in Bush v. Gore that “process defects in recount procedures in Florida did ‘not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right ….’”
One of the ODC’s findings said that “the [Justice] Department did not harbor the belief described in the letter.” Clark refuted this, stating that “ODC imagines that ‘the Department’ is something abstract and external to Mr. Clark. In fact Mr. Clark was part of DOJ’s leadership and was free to disagree with Rosen and Donoghue.”
The ODC claimed that Clark’s draft letter improperly interfered with Georgia officials since the officials ultimately chose a different path for dealing with the election illegalities than the suggestions Clark laid out in his letter. The ODC faulted Clark for not gaining additional approval first in his letter. Clark responded, “No law or policy requires Solicitor General approval before DOJ can take positions before state legislatures or state gubernatorial officials.”
The ODC claimed that Donoghue’s testimony was the truth, so Clark’s opinion must have violated ethical rules. Donoghue said there was no fraud in the election. Clark responded, “Donoghue’s opinion was based on DOJ’s investigation of only fraud, excluding non-fraud irregularities, whereas Mr. Clark’s opinion was based on facts including irregularities. … Mr. Clark’s letter referred to irregularities and not fraud, while Donoghue referred to fraud and not irregularities.”
Similarly, in regards to Rosen’s opinion, “The fact that Rosen thought that investigating signature-match anomalies was a matter for the Trump campaign, and not DOJ, was his opinion. … There is no preexisting, written law, or policy to that effect at DOJ that Rosen, Donoghue, or ODC have pointed to.”
He added, “That Fulton County did not do signature match verification, while other counties did is exactly the sort of inconsistent standard that was held to be an equal protection violation in Bush v. Gore. Federal constitutional violations are self-evidently within the jurisdiction of DOJ.”
“The credibility of Donoghue and Rosen was impeached,” Clark asserted. “They were unable to explain the discrepancy between Barr’s memo of November 9, 2020, saying that DOJ would investigate irregularities and Mr. Barr’s statements on December 1 and December 21 2020 that DOJ had only investigated fraud and had not investigated non-fraud irregularities, and their own testimony, especially Donoghue, that no matter how many irregularities were found, it would not matter to DOJ. … They stuck to this position despite there being no absentee ballot signature verification in Fulton County, which counted 142,029 ballots in violation of Georgia law.”
Clark said Donoghue flip-flopped on the witness stand when asked whether the DOJ or the FBI had investigated absentee ballot signature verification in Fulton County. “Donoghue was an especially recalcitrant witness on the question of why he refused to allow Mr. Clark to examine the investigative files, refusing to answer this simple question, despite it being put to him several times. While being impeached, Rosen and Donoghue’s manner of testifying changed dramatically, and they became very evasive and showed extreme tension.”
The brief speculated about Donoghue withholding the files from Clark: “This permits an inference that the investigative files would not support the positions that Barr, Rosen, and Donoghue took during the election.” Clark said he was denied a fair trial because he was denied access to the documents for his defense and witnesses from the DOJ who could have testified.
The brief cited testimony by Garland Favorito of VoterGA, who is a retired IT professional with extensive experience with electronic voting machines and investigating election fraud in Georgia. Favorito said “[t]here was meaningful evidence of fraud or irregularity in the 2020 election in Fulton County, namely evidence of ballot trafficking, counterfeit ballots and voting system malfunctions in Coffee County and Ware County.”
The brief continued, “Georgia Secretary of State Raffensperger gave an interview on the morning of November 4, 2020 and told NBC Today that 2% of 4.7 million votes remained to be counted, and that President Trump’s lead exceeded the remaining number of voters to be counted, approximately 94,000, and that the counting would be finished by the end of that day. However, a total of 4.998 million votes were counted, the source of the excess over 4.7 million was unknown.”
Another issue during the hearing was that “Multiple election workers gave affidavits shortly after the election that they had seen pristine absentee ballots that had not been folded and that appeared to have been printed rather than hand-marked.”
“Suzy Voyles, an experienced poll manager for Fulton County, personally observed a batch of absentee ballots from a drop box that did not have proper chain of custody documentation, had an excessive number of ballots, and in which the ballots were pristine, had never been folded, appeared to have been printed rather than hand-marked, and were all voted identically all the way down the ballot.”
Voyles said she “was eventually interviewed by an investigator with the Secretary of State’s office, who treated her in such a hostile manner that she left.”
The poll pads were programmed incorrectly at one of the precincts, Voyles said, requiring employees from Dominion Election Systems to remotely reprogram it. “This contradicts common assertions that the election systems machines did not connect to the Internet,” Clark said in the brief.
Stanley Young, an expert with a Ph.D. in statistics, testified that it was statistically improbable for the first half of absentee ballots to correlate with the second half. John Lott, an econometrician and statistician, performed a statistical study for the DOJ that found indications of absentee ballot fraud in Fulton County.
Cybersecurity expert Shawn Smith “testified that the election computer systems used in Georgia are effectively undefended and defenseless, having ‘gross, intolerable mission compromising vulnerabilities.’”
Harry Haury, “an expert on the Help America Vote Act who participated in the drafting of the statute, and with significant experience designing and implementing secure communications and computer systems at the highest levels of classification in the government,” testified that “[t]he required risk management assessments were not performed and the election systems and procedures in Georgia did not comply with HAVA or the other applicable statutes.” Haury concluded, “From an operational security standpoint, it was not reasonable to certify the election in Georgia.”
The ODC claimed that Clark acted in a “misleading” way when he discussed how there were two competing slates of electors, one for Trump and one for Biden. “[T]here was no legitimate alternative slate of Georgia electors pledged to Donald Trump,” the ODC said.
However, Clark pointed out that in the 1960 presidential election, three slates of electors were proposed, and one was not certified by any governmental entity.
Clark said his conduct was not prejudicial to the administration of justice because no legal tribunal was involved; the letter was never sent.
Clark said it was an error for the panel not to allow any evidence from after January 3, 2021, since much of that evidence showed election illegalities and fraud in Georgia’s election, exonerating his position. He said a small amount of that testimony came out anyway, such as “Mr. Favorito testified on cross and redirect that Georgia Secretary of State Brad Raffensperger falsely claimed to have had a contractor perform an audit of the election machines,” “ballot images were altered without explanation or justification in Fulton County,” “8,000 ballots were double-scanned statewide,” “60% of the tally sheets in the RLA were incorrect and did not match the actual ballots in the batch,” “there were more than 17,000 votes in the second machine count for which there was no corresponding ballot images in Fulton County,” and more.
The end of the brief consisted of arguments about why the D.C. Bar did not have jurisdiction over Clark. A federal law provides for removal when the actions in question involve a federal official, and Clark tried unsuccessfully to get the disciplinary action removed to federal court. Clark said, “The D.C. Bar has never, much less ‘ordinarily,’ disciplined a non-federal attorney for conduct comparable to that charged in this case.” Clark’s appeal to the D.C. Circuit on that issue and related proceedings remains pending, so the removal issue is not dead yet.
Finally, Clark cited case law, which stated that federal officials are entitled to absolute immunity when acting within the scope of their discretionary authority.
Clark was unable to address some of the allegations because he invoked his Fifth Amendment right against incrimination. He could not address others because he was required to invoke attorney-client privilege between himself and Trump.
He said, “Once Pandora’s Box has been opened, even then-draft but never published judicial opinions could be subject to bar complaints for ‘attempted dishonesty.’ … No bar disciplinary system should allow itself to be perverted to such malignant and destructive purposes.”
Clark asked the panel to find that he had committed no ethics violations. If they recommend discipline against him, he can appeal to the Board of Professional Responsibility. After the Board’s decision, Clark can appeal that to the D.C. Court of Appeals. The pleadings in Clark’s case and 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].
