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Jeffrey Clark repeatedly invokes his Fifth Amendment right

homesafetytechpros — Thu, 28 Mar 2024 07:40:21 +0000

Left: Jeffrey Clark during his bar disciplinary hearings on March 27, 2024 (D.C. Bar Office of Disciplinary Counsel); Right: Jeffrey Clark in his DOJ profile photo (U.S. Department of Justice)

Former U.S. Department of Justice attorney Jeffrey Clark repeatedly invoked his Fifth Amendment right to remain silent during a Wednesday disbarment hearing in the nation’s capital.

Clark briefly testified during disciplinary hearings where his law license is on the line over his efforts to help Donald Trump overturn the results of the 2020 presidential election. The proceedings in the case against the lawyer are long delayed — the D.C. Bar Office of Disciplinary Counsel filed ethics charges against him in July 2022.

When posed numerous questions by disciplinary counsel Hamilton Fox III, the pro-Trump lawyer invoked his constitutional right to remain silent — and often cited a host of other privileges, sometimes on the advice of counsel, in order to refrain from giving detailed answers.

“Mr. Fox, the same answer,” Clark replied in response to several questions. “The Fifth Amendment privilege at this time. The executive privilege. The law enforcement privilege. The deliberative process privilege and attorney-client privilege.”

Clark is an environmental lawyer whom Trump nearly tapped to be acting attorney general in his scramble to retain the presidency after losing to Joe Biden in the 2020 election. He also previously worked as an assistant attorney general at one sub-agency within the DOJ and as an acting assistant attorney general within another.

On Wednesday, peppered with question after question by Fox, Clark invoked the Fifth Amendment in various iterations. And the contents of the questions did not really seem to matter much.

Asked when he first met Trump, for instance, he said: “I will plead the Fifth.”

And sometimes, he even had fun with his stock response of remaining silent and asserting privilege after privilege.

“A veritable phalanx of privileges,” Clark joked.

The bar charges he faces are focused on an unsent draft letter falsely claiming the department “identified significant concerns that may have impacted the outcome of the election in multiple states, including the state of Georgia.”

The specification of charges said that Clark violated D.C. Rules of Professional Conduct 8.4(a) and (c) (“in that respondent attempted to engage in conduct involving dishonesty, by sending the proof of concept letter containing false statements”) and Rules 8.4(a) and (d) (“in that respondent attempted to engage in conduct that would seriously interfere with the administration of justice”). The so-called “proof of concept letter” is the draft Clark compiled that would have urged legislatures in states where Trump lost to “send an unauthorized slate of electors to Congress,” according to the charges.

Identified as a “witness” during the hearing livestreamed on Zoom, Clark’s decision to plead the Fifth Amendment can be viewed through the prism of his legal jeopardy in Fulton County, Georgia, where he is one of the co-defendants in the racketeering (RICO) and election subversion case against his former boss.

Notably, Clark is also an integral aspect of special counsel Jack Smith’s D.C.-based case against the 45th president — and last month sought to delay his bar hearings over developments in Trump’s case.

That latest effort — unlike several earlier dilatory tactics undertaken by Clark months and even years ago — did not pan out.

Trump, however, injected himself into Clark’s proceedings — with the ex-president’s attorneys, in a letter, instructing the former DOJ lawyer “to maintain President Donald Trump’s executive privilege and other related privileges, including law enforcement privilege, attorney client privilege, and deliberative process privilege.”

Pleading the Fifth Amendment is nothing new for Clark — he invoked his constitutional right over 100 times in February 2022 when deposed by investigators for the House Jan. 6 Committee.

Clark’s behavior on Wednesday, while not fully illuminating, did draw attention and eventually led to at least one substantive answer.

“Mr. Clark, you asserted a number of times the attorney-client privilege,” D.C. Bar Committeewoman Patricia Matthews began. “For whom were you the attorney?”

To which Clark replied: “For President Trump, the head of the executive branch, the sole head, the unitary head of Article Two, the executive branch of the United States government.”

“So, throughout this whole process, that was your client?” Matthews attempted to follow up.

Clark’s attorney, Harry MacDougald, interjected and advised his client to, once again, invoke the Fifth Amendment.

The pro-Trump lawyer then asked the committeewoman to repeat her question, which she did.

Clark replied: “So, I provided an answer in this area. But I agree with my counsel that as to any inquiry as to how the privilege was formed, etc. —”

Matthews took the opportunity to interject and then asked her question a third time.

Again Clark replied: “I would respond to that by invoking the same grouping of privileges, with all due respect, the Fifth Amendment privilege at this time. The executive privilege. Law enforcement privilege. Deliberative process privilege and the attorney-client privilege.”

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Jeffrey Clark says Fulton County DA’s office allowed perjury

homesafetytechpros — Thu, 07 Mar 2024 22:02:29 +0000

Left: Former Justice Department official Jeffrey Clark in Washington, D.C., June 13, 2023. (AP Photo/Amanda Andrade-Rhoades) Right: Fulton County District Attorney Fani Willis in Atlanta on Aug. 14, 2023. (AP Photo/John Bazemore)

Arguments continue to be made in the disqualification controversy targeting Fulton County District Attorney Fani Willis and special prosecutor Nathan Wade as the judge overseeing the matter considers the evidence and relevant legal standards.

Fulton County Superior Court Judge Scott McAfee is, inevitably, being inundated with post-hearing filings as 15 co-defendants still remain in the racketeering (RICO) and election subversion case against Donald Trump. Most, if not all, of those co-defendants have signed onto the effort to remove Willis and her entire office from the case.

An 11-page brief filed in Fulton County Superior Court on Wednesday by co-defendant Jeffrey Clark, a former U.S. Department of Justice lawyer charged in the fake electors plot, accuses Willis of ratifying perjury, misstating the law, and several “actual” conflicts of interest.

Clark is an environmental lawyer whom Trump nearly tapped to be acting attorney general in his failed scramble to retain the presidency after losing to Joe Biden in the 2020 election. Clark previously worked as an assistant attorney general at one sub-agency within the DOJ and as an acting assistant attorney general within another.

The charges against Clark are based on an unsent draft letter falsely claiming the DOJ “identified significant concerns that may have impacted the outcome of the election in multiple states, including the state of Georgia.” Clark’s draft also called on officials to convene the state legislature and consider advancing a slate of contingent, or fake, electors committed to voting for Trump in the Electoral College.

Clark’s filing, prepared by Harry MacDougald, is stylized as a reply to the district attorney’s supplemental post-hearing brief — but begins by discussing an issue that the state’s brief did not address at all.

Instead, the filing centers an argument that Willis, and attorneys in her office, bear some measure of responsibility for perjury allegedly committed by Wade during the disqualification hearing.

Wade has said different things about the unraveling of his marriage — specifically regarding his marital fidelity — in his responses to two different sets of interrogatories. During his testimony in February, he attempted to excuse those inconsistencies filed in court documents.

Clark says Wade lied and that Willis had a duty to correct those lies.

“Wade obviously lied under oath in his testimony on February 15, 2024 when he was attempting to explain his obviously false interrogatory responses in his divorce case,” the reply reads. “We are now 20 days past that testimony. In that intervening period, the District Attorney has said and done nothing whatsoever to either disavow Mr. Wade’s perjured testimony or require him to correct it.”

Categorizing this alleged failure as a “spectacular breach” of her duty, Clark’s filing argues Willis has violated her duty of candor under the professional rules of conduct that govern Peach State lawyers.

“The reason for this state of affairs is obvious — it is in the District Attorney’s personal, individual interests that Mr. Wade’s perjury go uncorrected,” the reply goes on. “Ms. Willis has ratified Mr. Wade’s perjury by not repudiating it as her duty requires. The District Attorney’s professional judgment has not been merely impaired by her conflicts of interest, it has been corrupted beyond redemption.”

Clark’s defense attorney previously raised Wade’s alleged perjury during his own closing arguments in the hearing last week.

“The husband is hiding things from his wife,” MacDougald said. “He lied in his interrogatories and then he got on that stand and lied about lying in his interrogatories. And the lawyers for the DA, the DA’s office, they just sat there and let him do it. They did nothing to correct obviously perjured testimony. And that’s reason enough to disqualify all of them.”

The issue with Wade’s testimony — along with various other aspects of Wade’s long-running divorce case — are later cited to as relevant to four (out of six) “actual conflicts” that have arisen since Willis and Wade were accused of nepotism and self-dealing in a January motion filed by co-defendant and Trump 2020 campaign staffer Mike Roman.

One such actual conflict was the unusual decision by the district attorney herself to file a nonparty motion in Wade’s divorce to obtain a protective order against Wade’s estranged wife, Clark argues.

“In that filing the District Attorney violated Rule of Professional Conduct 3.4(h) by abusing the power of her office to threaten her boyfriend’s wife with criminal prosecution to gain advantage for herself and her boyfriend in her boyfriend’s divorce,” the reply reads. “This is also an actualized conflict of interest in which she advanced her personal interests and those of Mr. Wade to the detriment of her professional duties.”

The state has attempted, with questionable success so far, to convince McAfee that an actual conflict of interest is the legal standard by which a prosecutor can be removed from a case in Georgia.

In their supplemental brief, the state also essayed an even higher burden on the defense which would apply the “actual conflict” standard to a very specific set of facts. Namely, that a prosecutor must have a monetary interest in the outcome of a case.

MacDougald rubbished that theory as not in accord with the law.

“This ignores that a prosecutor’s statutory duty of impartiality inheres in every official act they take, not just conviction,” the reply reads. “The enforcement process has a milestone at the point of conviction but the process obviously begins earlier.”

The reply goes on to cite case law in Georgia which, it claims, stands for the proposition that “indictments were to be quashed if the personal interest existed when the case was presented to the grand jury.”

Clark’s reply likens those facts to the present case, at length:

Here, Mr. Wade was paid over $650,000 over a two-year period beginning long before the indictment and long before any conviction, and the District Attorney received gifts from him during this period. She therefore had a personal interest in the case that was operative at the time of indictment. The State’s suggestion that this does not matter because the interest must be in conviction alone should be rejected because it is premised on the false notion that prosecutors have no duties of impartiality at any other time in the progress of a criminal case.

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