Oral arguments took place last month in the appeal by Donald Trump’s former Department of Justice official Jeffrey Clark over a recommendation suspending his law license for two years due to his efforts advising Trump on 2020 election irregularities. A three-member committee of the District of Columbia Board on Professional Responsibility (BPR) found him culpable on August 1 of violating attorney ethics rules due to drafting a letter that was never sent to Georgia officials advising them of their options in dealing with the irregularities.
The Washington D.C. Bar’s counsel, Hamilton Fox, who is pressing to disbar Clark as a “threat to democracy,” gave the argument for the bar to eight members of the BPR. Fox referred to the letter Clark drafted as a “false letter,” since the officials above him decided not to send it. One of the attorney members on the BPR responded that attorney ethics rules don’t prohibit attorneys from disagreeing with their superiors.
Fox repeatedly stated that Clark never submitted any evidence of election wrongdoing in 2020. However, Clark’s briefs contained opinions from multiple election wrongdoing investigators, some of whom testified in his disciplinary trial. VoterGA’s Garland Favorito, who lives in Georgia and is considered one of the top experts in the country on election fraud, testified extensively during his trial not only about election laws that were broken but actual fraud.
Fox tried to cast guilt on Clark for not responding to some of his questions during the original disciplinary hearing. Clark had pleaded the Fifth Amendment and chosen not to testify, since he is a defendant in Fulton County District Attorney Fani Willis’ RICO prosecution of Trump and other Republicans. One of the members on the BPR pointed that out to Fox. Willis has since been removed from the case due to “a significant appearance of impropriety.” Clark had attempted to delay the bar disciplinary proceedings until after the criminal trial, which is standard procedure, but judges ruled against his motions.
Fox claimed there weren’t two sets of electors in Georgia in the 2020 election. “That was a false statement, never happened … fake elector scheme.” One of the BPR members challenged him on saying this, “What do you mean ‘everyone believed this?'”
Clark’s attorney Charles Burnham provided his rebuttal. He said the Supreme Court’s recent decision on presidential immunity, Trump v. United States, which came out after the bar brought charges against Clark, changed any findings of culpability. The court held that presidents have absolute immunity from criminal prosecution for actions performed within their official responsibilities. The bar proceedings against Clark are considered quasi-criminal, and since Clark was “simply proposing advice” to Trump that Trump had requested, the immunity extended to him too, Burnham argued.
He cited language from the opinion which stated that “candor from advisors” is protected. He said while the president is entitled to absolute immunity, advisors like Clark have qualified immunity.
Burnham addressed three alleged misrepresentations the hearing committee claimed Clark had made. The first one was that Clark’s draft letter was misleading regarding wrongdoing in the election. Burnham emphasized that Clark only said the wrongdoing “may have” impacted the results of the election, he did not say the evidence was “outcome determinative” or showed fraud.
Clark based his assessment of wrongdoing on the Ligon Report. The Ligon Report was an investigation conducted by members of the Georgia Legislature that concluded in early December 2020 and found that the election was so “fraught with irregularities” that it “should have never been certified.”
The second alleged misrepresentation was that Clark referred to a second slate of electors in Georgia. Burnham said this wasn’t disputed; “no one denies it,” there were plenty of references to a second set of electors.
Third, the hearing committee said it was a misrepresentation that the DOJ was looking into the Ligon Report. However, Burnham said the DOJ is allowed to give all kinds of advice, which is all Clark was doing.
Burnham said “policy decisions by high government officials” are not intended to be covered by attorney ethics rules.
No one told Clark the allegations he relied upon were false, Burnham said. He added that one of their witnesses, a law professor, testified during the trial that there was “nothing legally inappropriate” about Clark’s advice.
One of the BPR members accused Clark’s draft letter of “urging” Georgia election officials to take action. Burnham responded and said this wasn’t accurate; the draft letter didn’t recommend that the officials choose the Republican slate of electors.
Burnham said Trump went to Clark for advice because there was “groupthink” taking place around him with other officials, and he wanted to hear from an “outside-the-box” type of attorney.
Burnham summarized that the initial findings from the hearing committee were based on incomplete evidence due to the decision in Trump v. United States and should be reconsidered. He accused the committee’s findings of being influenced by the political context. He said Clark’s conduct was based on his understanding of the President’s directives and the need to ensure the laws were faithfully executed. His factual basis for the letter was the Ligon Report and other civil filings, Burnham said. Since Clark’s actions were within the scope of his authority, they did not constitute dishonesty.
Burnham concluded his defense by warning that an adverse decision against Clark will have a “chilling effect on discussions within the executive branch.”
After the BPR’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 and other Trump attorneys are located here. His GiveSendGo legal defense fund has raised $136,010 of the $500,000 requested.
While some state bars around the country continue to discipline conservative election attorneys, some have begun backing off. In Arizona, after the Arizona Supreme Court held that election attorneys could not be disciplined for bringing election challenges, the State Bar of Arizona’s disciplinary judge ruled that she was not going to discipline Kari Lake’s attorneys, Kurt Olsen and Andrew Parker, citing the court’s decision.
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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 “Jeffery Clark” by Center for Renewing America and “Board Hearing” is by the District of Columbia Board on Professional Responsibility.
