Clark Fights Sanctions With Possible Trump Role at Stake (1) – Bloomberg Law
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By Sam Skolnik
Jeffrey Clark’s attorney argued Friday why Clark should avoid sanctions for his part in trying to overturn the 2020 election results, an outcome that could dictate the role he can play in any Donald Trump second term.
The former US assistant attorney general told a three-judge DC Court of Appeals panel that the DC Bar lacks jurisdiction to sanction him, including possible disbarment. Sanctions, especially disbarment, would hinder Trump’s ability to tap Clark for a high-ranking post in a new administration, said Richard Painter, a University of Minnesota Law School professor.
“I don’t think he could do anything at DOJ,” Painter said, including jobs that would require him to sign briefs or appear in court.
Clark is best known for circulating a draft letter while he was still at the Justice Department on Dec. 28, 2020. The letter recommended that Georgia officials call a special legislative session to determine who “won the most legal votes” and consider appointing a new slate of electors, according to a 2021 Senate Judiciary Committee report.
At the hearing, DC Bar Disciplinary Counsel Hamilton Fox III said that his “entire case is built around that letter.”
The main reason for his subpoena, he said, is that the letter, in its references to documents that verify Clark’s claims of election irregularities, “seems to me to be an admission.” Yet Clark “hasn’t produced the evidence,” Fox said.
Fox added that his primary reason he wants the subpoenaed documents is to show the evidence to the court in his sanctions case.
The DC Bar’s Office of Disciplinary Counsel filed a case against Clark in 2022 alleging that he violated rules governing the conduct of licensed attorneys. Clark tried unsuccessfully to persuade the US District Court for the District of Columbia to intervene.
Clark in written arguments has said the bar lacks jurisdiction to prosecute him over advice he gave a sitting president. The case is the only one his team is aware of in which a state or local bar “has attempted to exercise disciplinary authority over a high-ranking, Senate-confirmed federal government official for actions taken in the course of his duty,” according to the written arguments.
If the appeals judges back the ruling of the lower court, the matter would go back to the DC Bar, which has the option to sanction the attorney with punishments ranging from written warnings to disbarment. Clark could then contest any sanctions back to the appeals court.
Clark declined comment after the hearing through an on-site spokeswoman. His attorney, Charles Burnham of the DC firm Burnham and Gorokhov, and Fox declined to answer questions. The judges did not rule on Friday as to the merits of Clark’s arguments.
In his arguments before the appeals court on Friday, Burnham contended that the bar lacks the right to documents tied to Clark’s Dec. 28, 2020 draft letter. Such access would violate Clark’s Fifth Amendment right not to incriminate himself in the Georgia RICO case and the DC federal court conspiracy cases that have been brought against Donald Trump, he said.
In response to a question from Senior Judge Stephen Glickman regarding the thousands of documents already submitted by Clark, without claims of self-incrimination, Burnham contended that his stance regarding the subpoena wasn’t an “all or nothing proposition.”
Burnham contended further that there isn’t any case law preventing the partial production of documents.
Clark is a defendant in the Georgia RICO case against Trump and he has pleaded not guilty. He surrendered last August, around the same time as fellow Trump attorneys Sidney Powell, Rudy Giuliani and John Eastman, and posted a $100,000 bail.
Clark is also an alleged but unindicted co-conspirator in the conspiracy case against Trump in the Washington DC federal district court.
Erwin Chemerinsky, dean of the UC Berkeley School of Law, said that while Clark “has the Fifth Amendment privilege against self-incrimination and the right to refuse to make statements that would be incriminating,” that privilege generally does not provide protection from having to produce documents.
“It is clear that a bar may discipline a lawyer for engaging in fraud or deceit,” Chemerinsky said. “The law is clear that the rules of professional conduct forbid lawyers from making false statements and that violation of this is a basis for discipline.”
Clark has a valid claim under the Fifth Amendment “for now,” said Painter, a former White House counsel’s office attorney during the George W. Bush administration. “But if a lawyer is indicted for a felony, he should be suspended from practicing law,” he said.
Painter said Clark stands out among Trump’s legal defenders and justifiers in at least one significant way. Unlike lawyers such as Powell, Eastman and Giuliani, who primarily represented Trump through his political operation, Clark had a greater responsibility as a Justice Department official, he said.
“His duty was higher than these private lawyers,” Painter said. “Clark stands apart because he had a fiduciary duty to the law and the United States.”
Fox argued in a Jan. 17 brief that during a Jan. 3, 2021 meeting with Trump and several members of his legal team, six lawyers argued against sending the draft letter because it contained false statements.
“Only Clark favored sending it and said that he would do so if he were appointed acting attorney general,” Fox wrote.
But Burnham in a Dec. 18 brief wrote that the Georgia and DC cases “plainly give Mr. Clark a valid Fifth Amendment claim against compelled testimony.”
Clark’s Dec. 28, 2020 letter “has become the test case of whether federal policymaking can ever be an appropriate subject for professional discipline,” Burnham wrote. “No matter the outcome, In re Jeffrey Clark will be a precedent-setting case for decades to come.”
The case is In re Jeffrey B. Clark, No. 22-BG-0891, DC Court of Appeals.
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