Government

Trump DOJ Lawyer Jeffrey Clark Plays Stupid Games With Jan. 6 Committee, Wins Stupid Contempt Referral Prize

Sometimes the bullfighter wins, some times the bull wins.

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(Photo by Samuel Corum/Getty Images)

Last night, the House Select Committee to Investigate the January 6 attack on the US Capitol voted to refer former Justice Department lawyer Jeffrey B. Clark for contempt of Congress after he refused to comply with a subpoena for documents and testimony about his role in a plot to use the DOJ to overturn the election. Having royally pissed off the Committee with his antics, he’s now threatening to plead the Fifth if forced to testify. Long story short: he took a poor hand and played it very, very badly.

Long story long: HO. LEE. SHIT.

It all started back on October 13, when the Committee subpoenaed Clark, as well as former acting Attorney General Jeffrey Rosen and acting Deputy AG Richard Donoghue to testify. The DOJ said it wasn’t invoking privilege, and Donald Trump’s lawyers sent a blustery letter saying that he wasn’t going to sue to exert executive privilege as to their testimony “so long as the Committees do not seek privileged information from any other Trump administration officials or advisers.” So Rosen, Donoghue, and the rest of the former Justice Department officials hightailed it on in to the Committees to tell House and Senate investigators all about that hilarious time Jeff Clark tried to get himself made AG so he could launch a bunch of fake investigations into non-existent election fraud and allow swing state legislatures to recall their electors and recast them for Trump.

But not Jeffrey Clark. The onetime Kirkland & Ellis lawyer has employed a series of increasingly desperate stratagems to avoid telling the Committee what went down.

Clark’s lawyer Harry MacDougald of Caldwell, Carson, Elliott & DeLoach LLP wrote the Committee on November 5 to say that his client was interpreting the subsequent subpoenas of former White House Chief of Staff Mark Meadows and putrefying podcaster Stephen Bannon as automatically invoking the snapback executive privilege provisions in Trump’s prior letter. He also cited Trump’s lawsuit over records sought by the Committee from the National Archives as proof that the former president wants his client to keep quiet, and thus Clark will be producing no documents and answering none of the Committees questions on any topic.

Unsurprisingly, the Committee was unmoved by this logic and continued to insist that Clark show up as summoned. And so, on November 5, Clark and MacDougald appeared with a 12-page letter explaining that they could not possibly comply with any queries due to “the general category of executive privilege, the specific categories of the presidential communications, law enforcement, and deliberative process privileges, as well as the attorney-client privilege and the work product doctrine.”

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The pair appeared to think that the Committee would simply accept the letter and let them leave. But they were mistaken. Bigly.

What followed was an uncanny colloquy where MacDougald admitted that, while Trump had instructed Meadows and Bannon not to talk to the Committee, he had not reached out to Clark to tell him to zip it. Nor had the former president followed through on his threat to sue to assert executive privilege over Clark’s testimony. Nonetheless, Clark was refusing to answer any questions, even those which could not possibly be construed as privileged, such as those touching on his conversations with reporters.

Nor would MacDougald explain what privilege applied to any particular issue, characterizing the very inquiry as “badgering the witness.” Which is literally not how any of this goes.

Not to put too fine a point on it, but the transcript is batshit. Here’s a fun excerpt:

Rep. Raskin: I just wonder if Mr. Clark’s counsel has any authority for the proposition that he can categorically refuse to answer any questions as opposed to invoke the privilege he says he has with respect to the specific questions.

MacDougald: Our legal authority is set forth in the letter, Congressman.

Rep. Raskin: Well, the letter seems to be the magic solution for everything, but could you name the Supreme Court decision that you’re refusing to?

MacDougald: Congressman Raskin, as I previously stated, we’re not going to engage in legal debate or argument over this. We’ve set forth a written objection. The committee can respond to it in writing, and we’ll deal with that at that time. But we’re not going to do Q&A on legal points in this deposition.

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Shortly after this exchange, MacDougald and Clark stomped out, and MacDougald got on a plane. So he and his client weren’t there when the Committee reconvened at 4pm to discuss all the things they wanted to ask Clark and to decide whether he had made a valid invocation of privilege. Spoiler Alert: LOL.

The Committee promptly scheduled a December 1 vote on a contempt referral for Clark. Perhaps realizing that they done fucked up, Clark and MacDougald then fired off a series of bizarre missives questioning the Committee’s legal authority.

In a November 29 letter, MacDougald asserted that the Committee has no subpoena power because its authorizing resolution requires it to consult with the ranking Republican member, who, uhhh, does not exist. The theory seems to be that, because Republicans refused to participate after Speaker Pelosi rejected Reps. Jim Banks and Jim Jordan, there are no duly appointed Republicans on the Committee.

Astute observers will note that Republican Liz Cheney is Vice Chair, and Republican Adam Kinzinger also sits on the Committee. But MacDougald insists that they don’t count because they weren’t appointed by Minority Leader Kevin McCarthy. And also, is Liz Cheney even a Republican anyway since the Wyoming GOP hates her now? (Oh, yes, he did.)

Later that same day, MacDougald was back with yet another letter, in which he made a variety of procedural complaints — how can it be an official transcript if his client refused to sign it, answer that one, tough guy! — and generously offered to allow his client to testify if the Committee would simply limit its query to that one conversation Clark had with the Bloomberg reporter.

In fact, the Committee would not so limit itself. And according to minutes of the meeting in which it voted to refer him for contempt, Clark is now threatening to plead the Fifth.

Chair Bennie Thompson said:

Mr. Clark previously had the opportunity to make Fifth Amendment assertions on the record and declined. But a Fifth Amendment privilege assertion is very significant. So the Select Committee has agreed to provide him another chance to come in and assert that privilege on a question-by-question basis, which he’s required to do by law if he’s making such a claim. He agreed to come in and we will reconvene the deposition Saturday.

But we cannot be delayed. The Select Committee’s work is too important. We must be ready to act quickly if Mr. Clark remains in defiance of the Select Committee’s subpoena.

In case it wasn’t clear that they’re going to make him eat every syllable of that privilege and Fifth Amendment invocation, Rep. Raskin spelled it out in comments to CNN.

“You can’t plead the Fifth to an entire prosecution. You can’t plead the Fifth to every question you might be asked. So it applies only when you have a specific and reasonable apprehension that your answer could be used against you in a criminal prosecution,” the Maryland congressman said, adding later, “He didn’t state which criminal statutes he was referring to — whether it was election fraud or criminal conspiracy or whatever — but presumably he would have an opportunity to explain what are the underlying criminal statutes he’s afraid of being prosecuted under.”

Fuck around, find out.

Select Committee Documents

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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