Trump DOJ Coup Lawyer Jeff Clark Has Written His Memoirs. No, You Can't Read Them, They're ... Privileged.

Tough luck if you were hoping to find this dude's autobiography under the tree this weekend.

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The list of lawyers who got involved with Donald Trump and broke bad is long and distinguished … well, formerly distinguished anyway. And while no one will top Rudy Giuliani for spectacular career implosion, don’t sleep on onetime Justice Department Attorney Jeffrey B. Clark.

Clark’s attempt to persuade Attorney General Jeffrey Rosen to announce non-existent investigations of non-existent swing state electoral fraud put him at the center of the January 6 Select Committee’s hearing on Trump’s efforts to remain in power. And now Clark is apparently in the DOJ’s sights as well.

In June, the Justice Department seized Clark’s phone pursuant to a warrant, and the privilege dispute over his emails spilled out onto the public docket late last week when Chief Judge Beryl Howell of the federal court in DC unsealed several orders she’d issued this fall. Some of the disputed materials were from the communications of Pennsylvania Rep. Scott Perry, a congressional leader of the effort to block certification of Biden’s win, and from Trump’s Coups 4 Dummies lawyer John Eastman. Perry and Eastman have also had their devices seized by the FBI, and neither was successful at persuading the court to see the merits of their privilege objections. But despite their dogged efforts to document every twist and turn of this Keystone Coup, neither of them exhibited such hilariously bad judgment as Clark.

See, Clark spent much of 2021 writing his autobiography.

In Google Note.

Autosaving it to his email.

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With the explicit notation that “[n]one of this outline reveals privileged information.”

And the day after he got subpoenaed he added the notation “However this is attorney work product.” 

GULC ’95, REPRESENT!

Let’s leave aside the question of who on earth would read a biography of Jeff freakin’ Clark — best not to contemplate what goes on in that dude’s mind. Our story picks up when the filter team completed its review and decreed that Clark’s life story, beginning with his childhood “growing up deplorable in Philadelphia” and culminating with his vow to “resist communism” and work on “Covid litigation and against wokeism,” was not subject to privilege.

Clark’s attorney Charles Burnham, who also represents Eastman (so he’s used to getting his ass handed to him in privilege disputes!), argues that, contrary to the 329 drafts of this document where Clark said otherwise, the document is work product. Or, in the alternative, it is covered by attorney-client privilege … because it’s fun to say crazy shit in federal court.

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As laid out by Judge Howell, the work product claim rests on Clark’s claim to have been taking notes on his childhood and his role in the dispute over the 2000 election results in anticipation of “litigation” with the January 6 Select Committee.

In support of this “attorney work product’ assertion, Clark contends that he was able to “prepare work-product-protected notes for his own defense”, and “at all times, Mr. Clark has acted as his own counsel in the various matters on the Hill and elsewhere.” Specifically, Clark argues that he could have prepared the documents “about the upcoming legal challenges being anticipated” after the House Select Committee to Investigate the January 6, 2021 Attack on the Capitol requested that Clark provide testimony about the Justice Department’s investigations of alleged voter fraud related to the 2020 election results.

As the court notes, writing a mash note to yourself wherein you promise to be a warrior against “wokeism” can’t be transformed into a legal project simply by adding some “work-product buzzwords.” And anyway, testifying to Congress is not anticipated litigation — although getting indicted for violating 18 USC 1512(c)(2) is!

Clark made two similarly gonzo arguments in support of his attorney-client privilege claims: Either he was representing himself, and thus having privileged conversations with his lawyer. Or, in the alternative, he was at the time represented by Robert Driscoll, and “many attorneys have a practice of even requesting that clients provide autobiographical information for use in the representation.”

Judge Howell pays very little attention to the first of these claims, since it is essentially the same as the work-product claim and is anyway so ridiculous as to be beneath the court’s notice. As to the second, the judge spends some time on it, if only to shred Clark’s lawyer for arguing that his client could have been writing his autobiography for Driscoll in the absence of any evidence or testimony that he did anything of the kind.

Clark’s counsel asserted in a letter to the filter team that the “substance of the documents was later communicated to counsel,” Aug. 25, 2022 Clark’s Counsel Letter, but avoids repeating that assertion in his opposition to the government’s motion. Clark’s brief notably avoids making many factual assertions at all, instead arguing legal hypotheticals that may or may not apply to the facts at hand. See, e.g., Clark’s Opp’n at 5 (describing
Clark as “entirely capable of preparing a document capturing his own mental impressions, legal strategy, and related notes about the upcoming legal challenges,” without stating that Clark did in fact prepare the drafts for this purpose); id. at 6 (noting that “many attorneys have a practice of even requesting that clients provide autobiographical information” without arguing that Clark’s counsel actually did so); id. […] That the opposition brief elided any firm factual assertion about Clark’s intended purpose in writing the drafts — even while making legal arguments that depended on such facts being true — raises concern about any good faith basis Clark has for claiming protection under the attorney-client privilege or the work-product doctrine.

OUCH.

But Rachel Semmel, spokeswoman at the Center for Renewing America, an astroturf group dedicated to fighting the supposed scourge of critical race theory which employs Clark as the director of litigation, has answer for that.

“Just to show how desperate they are, the Friday before Christmas when nobody is paying attention, they ‘uncover’ an essay on how the communists are taking over — a foreshadowing of what the Justice Department and the J6 committee are doing now, and articles on how Biden’s global warming plan is going to destroy the economy — it’s hard to take these guys seriously,” she fulminated to Politico.

On the other hand, Semmel works for an organization whose litigation director is not only under federal investigation but is also suing the DC bar in an effort to hang onto his license to practice law. So, you know, big grain of salt.

Judge unseals new details of contacts among Rep. Perry, Trump-connected attorneys [Politico]


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