Jeffrey Clark’s bid to aid Trump election scheme violated attorney rules, DC Bar panel finds

A disciplinary panel in Washington has found that Jeffrey Clark, a former high-ranking Justice Department official, violated ethics rules for lawyers in his attempt to aid Donald Trump’s bid to subvert the 2020 election.

The three-member disciplinary committee determined Thursday that Clark’s campaign to pressure Justice Department leaders to help upend the transfer of power to Joe Biden violated his duties as an attorney.

The preliminary ruling jumpstarts a process that could lead to the suspension or even permanent revocation of Clark’s license to practice law, even as he’s considered a candidate for a senior position in a second Trump administration.Disciplinary investigators who brought the charges against Clark say they intend to advocate for his disbarment.

The decision followed six days of testimony, including by Clark’s former Justice Department superiors: Acting Attorney General Jeff Rosen and his deputy Richard Donoghue, who described a failed effort by Clark to use the department to falsely claim the election results were in doubt. Former Deputy White House Counsel Pat Philbin also testified publicly for the first time about Clark’s gambit.

Clark, who is also facing criminal charges alongside Trump in Georgia for trying to overturn the election results, declined to testify in the disciplinary proceeding, asserting his Fifth Amendment right against self-incrimination as well as executive privilege.

Though the panel did not immediately explain which rules of conduct they determined Clark violated, he faced two disciplinary charges related to his actions amid Trump’s frenzied effort to stay in power: attempting to engage in dishonest conduct and attempting to interfere with the administration of justice.

Clark has one more opportunity to convince the three-member panel to reverse its decision, which the panel’s chair Merril Hirsh repeatedly emphasized was a “preliminary” and “nonbinding” determination. Both he and disciplinary investigators will file briefs and seek to persuade the panel to rule in their favor in a subsequent decision that is likely several months away.

Clark is also sure to ask for a lighter punishment than investigators are recommending, such as a reprimand. Harry MacDougald, Clark’s attorney, said it would be wrong to disbar Clark for a “sincere” effort to do what he thought was right.

“He is a brilliant lawyer, and throughout his career he has worked like a sled dog,” MacDougald said. “We're not talking about the guy in 'Better Call Saul.'"

MacDougald said the case against Clark amounted to a “religious test” that “you must have faith in the election or else you cannot be a lawyer in the District of Columbia.”

“No official … can prescribe and enforce orthodoxy of that kind,” he said.

Merril Hirsh, the chair of the bar discipline panel, pressed MacDougald on how heavily he should weigh the gravity of the potential consequence of Clark’s effort in support of Trump. He noted that Philbin had warned Clark that if his effort succeeded, it would lead to riots in the streets all over the country. Clark responded, “Well, Pat, that’s what the Insurrection Act is for,” Philbin recalled.

Clark is the second lawyer involved in Trump’s post-2020 election efforts to face the prospect of discipline from D.C, bar authorities. A similar panel recommended former New York City Mayor Rudy Giuliani’s disbarment last July, a decision that remains pending before the D.C. Bar’s Board of Professional Responsibility. The board’s recommendation, in turn, can be appealed to the local D.C. Court of Appeals, which has the final say in the process.

Bar proceedings against figures like Clark and Giuliani have helped air details about the chaotic weeks following the 2020 election that might have otherwise remained concealed, even as criminal cases against the former president have slowed to a crawl.

For example, attorney John Eastman, an architect of Trump’s scheme to remain in power, lost his ability to practice law last week after a California judge ruled that he, too, had violated numerous rules of legal ethics and likely engaged in a criminal conspiracy with Trump to subvert the 2020 election. That decision followed months of proceedings that featured a granular review of the evidence Eastman used to craft theories aimed at upending the transfer of power from Trump to Biden.

Clark’s case, disciplinary investigators said, stemmed from events in December 2020 and January 2021, as Trump’s efforts to deploy the Justice Department to support his false claims of election fraud ultimately led him to Clark — then the acting assistant attorney general in charge of the Civil Division, who he viewed as willing to put the government’s weight behind a plan to upend the transfer of power.

Clark began meeting with Trump to discuss these potential efforts, and then began pressuring his bosses to issue a public letter calling on Republican state legislators to revisit the results of the election in key states Biden won. Clark was “willfully blind” to evidence that was contrary to his assertions that the election was stolen, investigators found. 

Eventually, Trump indicated he was considering putting Clark in charge of the department to carry out his plans. Clark told Rosen and Donoghue that if they simply sent his letter, he would decline Trump’s offer to lead the department, an effort that investigators said was coercive and would have dramatically damaged the transfer of power to Biden.

“Think of the chaos that would have ensued,” said Hamilton Fox, the lead investigator for the Office of Disciplinary Counsel.

Rosen and Donoghue repeatedly rejected Clark’s effort, contending that it was built on falsehoods. And they questioned his effort to involve himself in an area that was not within his purview.

Days before Jan. 6, 2021, Clark told his bosses that he had accepted Trump’s offer, prompting Rosen, Donoghue and a cadre of White House lawyers to plead with Trump to reconsider. During a confrontational meeting in the Oval Office, Trump ultimately backed down amid a threat of mass resignations by White House counsel and Justice Department leaders.

Clark contended that punishing him for a letter that was never sent — and for what he argued was a mere internal policy disagreement — would be an unprecedented abuse of the process that would chill government decision-making.

His defense focused primarily on a group of figures who investigated the 2020 election results and claimed they had discovered irregularities or possible fraud in the numbers. Though many of their conclusions have been discredited or sharply disputed by state officials and other investigators, Clark’s attorneys emphasized that it would have been eminently reasonable for him to have concerns about the election results based on what was known at the time.

However, some of the claims were easily disputed, and investigators said it was unclear whether Clark was aware of their allegations at the time he was pushing to send his letter. They also questioned whether Clark had done any due diligence to check the accuracy of the claims upon which he based his letter.