Jeffrey Clark Argues Trump Added 2020 Election Activity to His Official Duties

Jeffrey Clark, former acting assistant attorney general, testifies during a January 6th field hearing held by Rep Matt Gaetz (R-Fla.) in the U.S. Capitol in Washington on June 13, 2023. Michael A. McCoy/Getty Images

Ahead of a Sept. 20 hearing, former Justice Department (DOJ) official Jeffrey Clark is arguing that former President Donald Trump changed Mr. Clark’s job description to encompass 2020 election activity, forming the basis that his case should be removed from state to federal court.

In August, Mr. Clark was charged alongside President Trump and 17 others in a racketeering case over their challenge of the 2020 election results. Prosecutor Fani Willis, the district attorney for Fulton County, Georgia, alleges those actions constituted a “criminal racketeering enterprise.”

All defendants were charged with violating the state’s Racketeer Influenced and Corrupt Organizations (RICO) Act, and another 40 counts total.

Mr. Clark was charged with violating RICO as well as one count of “criminal attempt to commit false statements and writings.” All of the racketeering acts in the indictment, of which there are 161 total, naming Mr. Clark are related to his involvement in issuing a DOJ statement that noted the agency had “identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.”

“The President discussed the letter and election topics directly with Mr. Clark, and directly sought his opinions and advice,” attorneys for Mr. Clark wrote, adding emphasis to the line. “The President has the unqualified and illimitable right to seek and obtain such advice from his senior legal advisors. This act by the President conclusively ratified that Mr. Clark’s responsibilities included the election-related issues discussed in the draft letter, and that all of his charged conduct was under color of law.”

Removal Hearing

District Judge Steve Jones has already declined to hear co-defendant Mark Meadows, former chief of staff to the president, in federal court. After an all-day hearing, he remanded, or moved, the case back to state court. Mr. Meadows is currently appealing the decision in the 11th Circuit.

Both Mr. Meadows and Mr. Clark had argued that as federal officers, they can only be tried in federal court.

They cited precedent rulings on the Supremacy Clause, which elevates federal law above state law, and explained that the federal government would “cease to exist” if it had no power to protect itself in exercising constitutional powers.

Mr. Clark’s new reply, filed on Thursday (pdf), argues that many of the prosecution’s arguments against Mr. Meadows’s removal were incorrect, and supplies additional defenses for Mr. Clark in support of the removal. Mr. Meadows’s case is different from Mr. Clark’s in that it included several acts, and the judge deemed some of them part of his official duties and some not. Mr. Clark’s charges only involve the one statement.

The reply also makes reference to the “absolute immunity” of a U.S. President that arose out of a civil case a fired contractor brought against then-President Richard Nixon. President Trump’s exercise of his executive authority in assigning matters to officials like Mr. Clark cannot be subject to state proceedings, they argue.

“The U.S. Constitution does not allow any state/local government to examine or otherwise regulate the internal deliberations that occur on a daily basis among the President, his office, and senior government officials, including the Acting Attorney General, the PDAG, or any Assistant Attorneys General,” the filing reads.

“Such interference in the federal sphere cannot be allowed. Removal is the first line of defense in upholding the constitutional order in this context.”

DOJ Meeting Leaked?

The prosecution’s evidence includes an email chain and a description of a lengthy meeting that preceded the statement related to Mr. Clark’s charge.

Mr. Clark had sent a draft letter to colleagues on Dec. 28, 2020, and later in a “contentious meeting” that included President Trump, Mr. Clark, Assistant Attorney General for the Office of Legal Counsel Steven Engel, White House Counsel Patrick Cipollone, Deputy White House Counsel Patrick Philbin, and White House lawyer Eric Herschmann, they discussed sending the letter.

President Trump was initially in favor of sending the letter, but had changed his mind by the end of the meeting several hours later. Mr. Clark’s attorneys wrote that this meeting was a privileged discussion that was not leaked by Mr. Clark, and should never have become public. Yet, they became part of the charges against him, as the indictment notes that other DOJ officials were opposed to the letter.

“It simply does not matter for purposes of removal” whether others opposed the letter, Mr. Clark argued. “The color-of-law test does not turn on such questions. The Constitution gives the President the ultimate authority to ’take Care that the Laws be faithfully executed,' not those other officials.”

Removing the Special Purpose Grand Jury Proceedings

In addition to removing the case against him, Mr. Clark has sought to remove the special purpose grand jury proceedings from state court.

Before a regular grand jury had handed up the 41-count indictment, a special purpose grand jury had heard testimonies from 75 witnesses before issuing a report and recommending charges be brought against 39 individuals.

The district attorney’s office has argued this should not happen because the proceedings are not an “action.”

Mr. Clark argued in the reply that “actions” under the applicable statute include “proceedings (whether or not ancillary to another proceeding),” and the special purpose grand jury was “surely that.”

“The SPGJ Proceedings are inextricably linked to the indictment action, allowing both to be removed based on the timing of that indictment,” attorneys for Mr. Clark previously wrote, in arguing for the proceedings to be removed.

“Georgia is entirely fenced out of trying to regulate federal Justice Department lawyers engaged in internal deliberations.”