Bloomberg Law
Oct. 18, 2021, 8:01 AM

Disciplinary Complaints Await Former AAG Jeffrey Clark

Lauren Stiller  Rikleen
Lauren Stiller Rikleen
Lawyers Defending American Democracy
John T. Montgomery
John T. Montgomery
Lawyers Defending American Democracy
James F.  McHugh
James F. McHugh
Lawyers Defending American Democracy

The Senate Judiciary Committee issued a scathing report that describes former President Trump’s attempts to use the Department of Justice to subvert the 2020 election. Aptly entitled Subverting Justice, the report details the key role played by Acting Assistant Attorney General Jeffrey Clark in attempting to convince Acting Attorney General Jeffrey Rosen to falsely declare that the DOJ believed the election results in several states may have been fraudulent.

In describing Clark’s aggressive efforts on behalf of the president to involve the DOJ in overturning the election, the report reads like a novel. Except that the events were perilously real.

In particular, Clark had drafted a letter that he urged Rosen to sign and send to Georgia and several other states, claiming that the DOJ had “identified significant concerns that may have impacted the outcome of the election.”

The letter, however, was patently false as no such concerns existed. Accordingly, both Rosen and his deputy refused to issue the letter.

The record tells us why. In early December, just before leaving office, then-Attorney General William Barr announced that he had found no fraud significant enough to change any election result. Trump’s Department of Homeland Security called the election “the most secure in American history.” By the time of Clark’s letter, two Georgia recounts had occurred confirming Joe Biden’s win. And dozens of courts had rejected fraud claims from Trump lawyers.

In the face of Rosen’s refusal to engage in a plan to make false assertions of election fraud, Clark and the president concocted a scheme to fire Rosen and appoint Clark as the Acting Attorney General. When Rosen learned of this plan, he spoke to top officials at the DOJ who agreed that they would resign if Rosen were replaced.

Trump’s own White House Counsel concluded such a mass resignation would be a “murder-suicide pact,’ and said he would resign as well. In light of those threatened resignations, the former president ceased pressuring the DOJ to participate in his efforts to unravel a legitimate election.

Minority Report Reflects Essential Consensus

Responding to the Senate Judiciary Committee’s report, the Republican members of the Judiciary Committee issued a minority report. That document shamelessly suggests that former President Trump did nothing wrong since he was unsuccessful in his efforts to convince the DOJ to undermine the election results.

The minority report, however, reflects an essential area of bi-partisan consensus: Both sides of the aisle agree that Clark was attempting to use the DOJ to overturn the election results.

Both the majority and the minority report note that Trump backed away from his plan to replace Rosen with Clark after it was clear that the resignations of the DOJ’s leadership team and his White House Counsel would result in a public and media firestorm. The minority report further notes that even after Trump made his decision, Clark continued his efforts to persuade the president to appoint him acting attorney general.

Of importance, the majority report stated that it was referring Clark to the D.C. Bar’s Office of Disciplinary Counsel to investigate whether Clark violated ethical rules and should be disciplined. That disciplinary filing against Clark will not be the first such effort to hold him accountable.

A Formal Disciplinary Complaint Is Filed

Days before the report was issued, a bipartisan group of 32 distinguished D.C. lawyers, led by Lawyers Defending American Democracy (LDAD), filed a formal disciplinary complaint with that same office on the ground that Clark’s exhortations to engage the DOJ in the false assertion that the election results were tainted by fraud violated ethical rules governing members of the D.C. Bar.

LDAD had played a similar role in organizing and drafting a complaint in January against Rudolph Giuliani, whose license to practice law was suspended in July. In addition, a distinguished list of Texas lawyers joined LDAD in filing a complaint against Texas Attorney General Kenneth Paxton (R) for his role in bringing a frivolous—and quickly dismissed—Supreme Court petition containing false allegations of election fraud.

LDAD’s disciplinary complaint against Clark seeks an investigation as to whether Clark violated the ethical rule prohibiting dishonest conduct by lawyers in or out of court. Among the prominent lawyers signing the complaint were former DOJ officials in the administration of Presidents George H.W. Bush and Bill Clinton—lawyers whose experience ensures that they know wrongful conduct when they see it.

Wrong and Dangerous

Clark’s conduct was not just wrong, it was dangerous. What would have happened had Trump not backed down under threat of mass resignations? There remained several unresolved court cases challenging Georgia’s election results when Clark’s letter was under consideration. The courts may have taken seriously an official statement from the DOJ that the election results were potentially unreliable.

Moreover, Congress was to certify the election on January 6, only days away. As described in the report, Trump had already made clear that all he needed was for the DOJ to say the election was corrupt, and he and other Republicans would “do the rest.” Had Clark’s letter gone out, Trump would have undoubtedly used it to further pressure Vice President Mike Pence and members of Congress to discard the Electoral College count for Biden.

The Senate report reminds us of the determined steps President Trump took to dismantle American democracy. Holding individual lawyers to account for their part in advancing that plan will help ensure that our constitutional Republic survives.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Lauren Stiller Rikleen, a board member and interim executive director of LDAD, is the author of “The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace.”

John T. Montgomery is an LDAD board member and the former managing partner of Ropes & Gray (ret.).

James F. McHugh is an LDAD board member and a former Massachusetts Appeals Court justice.