On Friday, a federal judge declined to hear Jeffrey Clark’s case in federal court. Mr. Clark, former Department of Justice (DOJ) official, was indicted alongside former President Donald Trump and another 17 co-defendants for their actions in challenging the 2020 election results.
Fulton County District Attorney Fani Willis, who is prosecuting the case, claims their actions constituted a “racketeering criminal enterprise conspiracy.” On Aug. 14, a grand jury handed up a 98-page indictment charging all 19 defendants with violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act and a total of 40 more charges.
Mr. Clark was one of the five defendants who filed a notice of removal, moving their case from state to federal court. He also tried to move the special purpose grand jury proceedings, which had led to recommendations that charges be brought, to federal court. Following an evidentiary hearing, U.S. District Judge Steve Jones remanded, or moved, his case back to state court and said the federal court had no jurisdiction over the special purpose grand jury proceedings.
Charges
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.”During the period in question, he served as an Assistant Attorney General (AAG) in the DOJ Environmental and Natural Resources Division as well as the Civil Division.
Mr. Clark had drafted the statement meant to be sent to Georgia state officials, but the letter was never sent.
His superiors, acting Attorney General Jeffrey Rosen and acting Deputy Attorney General Richard Donoghue, had opposed the sending of the letter and would not sign it, something prosecutors argue was evidence that Mr. Clark acted outside his official capacity in doing so.
Whether or not this act was undertaken by Mr. Clark in his official capacity had implications not only for the removal, but also for whether he is liable in state court.
One of Mr. Clark’s defenses in his removal was the Supremacy Clause of the U.S. Constitution, which elevates federal law above state law and courts. Precedents based on this clause have ruled that federal officers cannot be charged with state crimes when carrying out official duties.
Decision
Judge Jones ruled that Mr. Clark was indeed a federal officer and has a colorable federal defense, but failed to show that “his actions alleged were taken under the color of his federal office.”He rejected Mr. Clark’s arguments that draft the letter fell within the “scope of his office” because as an AAG he was permitted to work in any particular DOJ division.
“Clark’s role in the Civil Division did not include any role in the investigation or oversight of State elections,” Judge Jones wrote. “The only witness subject to cross-examination at the hearing, Jody Hunt—the former AAG of Civil Division from 2018 until 2020 and whom Clark replaced—testified from his personal experience that most of the Civil Division’s work was ‘defensive in nature’ that is ‘defending suits that are filed against the United States or officers of the executive branch.’”
Judge Jones also noted that Mr. Clark did not submit witness testimony while the prosecutors brought forth two exhibits and one witness, and that he did not attend his evidentiary hearing.
The judge adopted the same reasoning in rejecting defendant Mark Meadows’s removal in Mr. Clark’s case. Mr. Meadows, former chief of staff to the president, is appealing the decision in the 11th Circuit, which Mr. Clark is expected to do as well.
