Jeff Clark is back, and he’s crazier than ever.
The former assistant attorney general’s efforts to steal swing state electors for Donald Trump netted him a criminal RICO charge in Georgia and the sobriquet “Co-Conspirator 4” in the Trump election interference indictment. It also earned him a bar investigation in DC, which he managed to delay by challenging it in federal court — but not for long since his argument was based on the claim that DC isn’t a state, and thus its bar couldn’t discipline him as a “state bar.”
He’s currently petitioning the DC Court of Appeals to rehear his case en banc after the first panel of non-state judges rejected his effort to fend off the non-state bar.
All these things came to a head last week, when Donald Trump intervened to make sure that Clark wouldn’t say anything to the bar investigators that might jeopardize their collective hides. The intervention came in the form of a letter from his attorney Todd Blanche to Clark’s counsel Harry McDougald purporting to invoke executive privilege as to his communications with the then-president.
The letter, reported by Politico, harkened back to an extremely funny episode from 2021 where Trump agreed not to invoke executive privilege with respect to Clark and several other top DOJ officials if and only if the January 6 Committee agreed not to issue any more subpoenas. But if the committee continued to investigate, Trump’s privilege waiver would be automatically revoked.
Reps. Thompson and Cheney had a good long laugh at this stupid stratagem, and, after reminding the witnesses that the sitting president had declined to invoke privilege, subpoenaed basically the entire Trump White House. Many witnesses, including White House Counsel Pat Cipollone and several DOJ officials invoked executive privilege in response to specific committee questions. But none of Trump’s post-presidential privilege invocations have survived in court, despite Trump’s constant repetition of dicta from Justice Kavanaugh’s concurring statement in the denial of cert for Trump’s attempt to block release of his presidential records by the National Archives.
Here on Planet Earth, the DC Circuit forced Cipollone and the rest of the DOJ officials to testify before the special counsel’s grand jury in the election interference case. Even Mike Pence had to spill the beans, although his position as president of the Senate gave him marginal cover.
Notwithstanding all this, Trump now instructs Clark to “maintain President Trump’s executive privilege and other related privileges, including law enforcement privilege, attorney client privilege, and deliberative process privilege.” He even goes so far as to imply that he’ll sue to block Cipollone and the other DOJ officials from testifying as witnesses in the bar investigation, citing the snapback waiver in the 2021 letter.
All of which is mighty convenient for all parties, particularly Trump himself. Because if Clark “can’t” testify at the bar hearing, then he won’t have to take the Fifth and accept the negative inference that comes with it. And of course Clark would have to take the Fifth, because of the pending Georgia charges. But with a little assist from his former boss, he’s now escaped all that unpleasantness!
And maybe that will stiffen Clark’s spine so he won’t go soft and take a plea deal from Georgia prosecutors like fellow attorneys Ken Chesebro, Sidney Powell, and Jenna Ellis. Not that Trump would seek to influence the conduct of a co-defendant, perish the very thought!
And in the meantime, Clark has been trying desperately to get out of Fulton County Superior Court and into the Southern District of Georgia. After the district judge rejected his removal petition (based on the hilarious theory that the RICO case was somehow a civil-criminal hybrid), Clark appealed to the Eleventh Circuit. But Mark Meadows got there first, and he’s already been rejected and petitioned for en banc review. Now Clark seeks to jump the line and join Meadows’s en banc panel without going to the trouble of arguing his case in the first place.
“If the Court grants Mr. Meadows’ petition for rehearing en banc, it may wish—even if just for the sake of efficiency—to hear Mr. Clark’s appeal en banc at the same time,” his lawyers assert confidently, citing exactly zero precedent for such a procedure.
Swing for the fences, weirdo.
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.