Jeffrey Clark Wins Appeal to Protect Election Documents From Bar

Jeffrey Clark has won a court fight to avoid having to disclose documents that backed his claims that the 2020 presidential election was full of “irregularities.” But the underlying effort by the DC Bar to possibly sanction Clark continues.

A three-judge panel of the DC Court of Appeals on Monday ruled that a request for the documents violated the Constitution by compelling Clark, known for his part in attempting to overturn the 2020 results, to potentially incriminate himself in two criminal cases brought against Donald Trump in Georgia and the District of Columbia.

The court denied the DC Office of Disciplinary Counsel motion to enforce its subpoena “because it infringes on Mr. Clark’s Fifth Amendment right not to be compelled to be a witness against himself.” The judges added that a more detailed opinion “will issue in due course.”

DC Bar Disciplinary Counsel Hamilton “Phil” Fox III declined to comment on the ruling. Clark’s attorney, Charles Burnham of the DC firm Burnham and Gorokhov, couldn’t immediately be reached.

The DC Bar’s Office of Disciplinary Counsel is seeking to sanction Clark, a former assistant attorney general, over his role as author of a Dec. 28, 2020 draft he wrote while at the Justice Department. The draft claimed to have “identified significant concerns that may have impacted the outcome of the election in multiple States.” The letter also recommended that Georgia officials call a “special session” to determine who “won the most legal votes.”

At a Feb. 23 hearing, Fox said his ongoing effort to sanction Clark “is built around that letter.”

In his arguments before the appeals court on Friday, Burnham contended that the bar didn’t have the right to documents tied to Clark’s 2020 letter. Such access would violate Clark’s Fifth Amendment right not to incriminate himself in a Georgia racketeering case and a DC federal court conspiracy case that have been brought against Trump, he claimed.

The Monday ruling effectively ended the scrap over the subpoena by denying a petition to rehear the matter before an en banc panel.

The underlying sanctions case against Clark continues. A DC Bar disciplinary committee reviewing the charges will put Clark on a type of sanctions trial on March 26, with punishments that could range from a written warning to disbarment. The case likely will be heard by at least by two other appellate bodies before the sanctions issue is decided.

The Office of Disciplinary Counsel has alleged that Clark attempted an act of dishonesty by trying to have his letter sent to election officials, and that he also violated the rules via conduct that interfered with the administration of justice.