A pre-hearing conference was held last month in the bar disciplinary proceedings against Jeffrey Clark, a former DOJ official under President Donald Trump.
He is being disciplined over a memo he drafted that was never sent to Georgia officials advising them of their options for addressing the illegalities in the 2020 election.
His trial is set for March 26. Clark (pictured above) is also undergoing prosecution in Georgia as part of Fulton County District Attorney Fanni Willis’s RICO charges against Trump and his former associates. He is an unnamed co-conspirator in Special Counsel Jack Smith’s federal prosecution.
Clark’s attorney, Harry MacDougald, said during the hearing, which was run by Merrill Hirsh, chair of the District of Columbia Court of Appeals Board on Professional Responsibility Ad Hoc Hearing Committee, that the proceedings should be delayed until other issues have been adjudicated, such as whether Clark should be required to comply with a subpoena issued by the bar prosecutors requiring him to turn over a vast amount of documents.
The D.C. Circuit Court of Appeals issued an order in December 2023 upholding the subpoena, and Clark’s attorneys objected, petitioning for panel and en banc rehearing.
“The issues that we raised in opposition to the Motion to Enforce are the same ones we’ve been raising from the beginning, which is that there is no jurisdiction to hear the case, executive privilege, and so on with that,” MacDougald said.
Hamilton Fox, from the Office of Disciplinary Counsel (ODC), objected to delaying the proceedings while other matters are adjudicated. However, if he is willing to proceed at trial without the documents he requested, they will not be considered of utmost importance, and he will be unlikely to pierce the protection of executive privilege. Fox has failed to break the executive privilege between Clark and Trump. Trump’s attorney sent a letter to Clark last month asserting executive privilege, law enforcement privilege, deliberative process privilege, and attorney/client privilege with respect to the disciplinary proceeding, instructing Clark to keep those privileges.
“Mr. Clark is not the holder of those privileges,” MacDougald said. “They are not his to waive. We consulted the holder for their position and they have asserted it.”
He said this also applies to any testimony from former DOJ officials Jeffrey Rosen and Richard Donoghue.
In the letter Clark drafted to Georgia officials, he suggested that the state legislature could take action to address the problems with the election. He urged Rosen, who was acting United States Attorney General at the time, and Donoghue, who was acting United States Deputy Attorney General, to sign the letter, but they refused. At one point, Trump became so frustrated with Rosen that he designated Clark the acting attorney general for a brief period.
MacDougald pointed out that Clark has been attempting to remove the disciplinary case to federal court since federal law states that federal officials are to be tried in federal court, but Fox has fought the removal. If Clark ultimately prevails on the removal, MacDougald said it will make the current proceedings “void,” and the trial proceedings against him must start from the beginning. The bar began its investigation of Clark well over two years ago, and initial charges were filed against him over a year and a half ago.
“That may not bother Disciplinary Counsel’s office very much because all their people are on salary,” MacDougald said. “But it is — it costs Mr. Clark very dearly and it’s unfair to him and we think imprudent to proceed while that remains pending.”
An attorney familiar with the proceedings who compared the duration and number and length of Clark’s filings to the disbarment trial of Trump’s former attorney John Eastman, applying prevailing rates for lawyers of Clark’s skill level, said a minimum of $1.2 million had been spent so far on Clark’s defense. His GiveSendGo, which is raising funds for his defenses in the two criminal proceedings as well, has only raised $69,000 of $500,000.
Next, MacDougald brought up the unequal treatment Clark has undergone, attempting to retrieve public records on October 29, 2023, from the Office of the Director of National (ODNI) and the DOJ, known as a Touhy request.
“They both rejected those Touhy requests as being insufficient in technical form because they, according to the agencies, did not comply with the requirements of their regulations for a Touhy request,” he said.
MacDougald said ODNI issued its rejection notice on November 28, 2023, and he filed a revised request immediately afterwards on November 30, but has never heard back. Similarly, MacDougald responded promptly to the DOJ’s rejection notice and has not heard back.
In contrast, “ODC’s Touhy request was not even remotely compliant with DOJ’s regulations for Touhy requests,” MacDougald said. “It wasn’t even in the ballpark. But DOJ very, very quickly approved it, and has approved all of their Touhy requests. … [W]e are being subjected to a maximum level of fastidious enforcement of the Touhy requirements, which is simply not applied to ODC. … It is a blatant double standard. And that is a due process violation because we are not getting equal access to evidence. They get immediate access to prosecute their case against Mr. Clark and we are denied, at present, evidence to defend it.”
Fox responded, “ I don’t know what the Touhy requests are that Mr. MacDougald has made, but I strongly suspect they are for matters that are of dubious relevancy and that is the reason for the different treatment.” He accused Clark’s attorneys of “a further effort to delay these proceedings.”
Hirsh refused to postpone the proceedings and dismissed MacDougald’s concerns about the disparate treatment over the Touhy requests.
Clark responded, “[L]et me just suggest that, just given all the other litigation deadlines that we face, Mr. Hirsh, I appreciate that you’re in the mode of thinking that you want to do your job until you’re ordered not to, but the number of proceedings that I’m being subjected to and the legal cost, it is truly staggering. And I think it is a factor that you can consider.”
MacDougald asked for a deadline of February 14 to file a motion against waiving executive privilege. “The reason I ask for that much time, Mr. Fox, is the other briefing schedules and deadlines that we have in front of us, which are not limited to this case,” he explained. “We have D.C. Circuit, we have 11th Circuit, we have Fulton Superior Court and, you know, maybe even DCCA.” Hirsh and Fox reluctantly agreed.
Fox filed disciplinary charges against four of Trump’s 2020 election lawyers last month. He accused them of making “knowingly false representations” to the courts about their lawsuits. 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].
