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Former Justice Department lawyer Jeff Clark just got booted out of federal court and will be facing RICO charges in Fulton County next year alongside Donald Trump and 16 other co-defendants.
This afternoon, US District Judge Steve Jones declined to assume jurisdiction over the case, rejecting Clark’s argument that he had been acting within the scope of his official duties when he drafted a letter to state legislators falsely claiming that the DOJ had found evidence of fraud and suggesting that the legislators would be justified in reconvening to steal Biden’s electoral votes.
Clark’s superiors, acting AG Jeff Rosen and his deputy Richard Donoghue, chastised Clark for going outside his authority as head of the Civil Division, which neither investigates nor prosecutes election fraud.
“You’re an environmental lawyer. How about you go back to your office, and we’ll call you when there’s an oil spill,” Donoghue snorted derisively at the infamous Jan. 3, 2021 Oval Office showdown where Clark unsuccessfully pleaded with Trump to make him acting AG.
Nonetheless Clark argued that he was acting within the scope of his official duties when he wrote the letter, and furthermore that he’d done the work at Trump request as head of the executive branch. In support of this assertion, Clark’s lawyers submitted a declaration by Ronald Reagan’s AG Ed Meese, which was partly accepted, and a declaration by Clark himself, which was not, since it was not subject to cross examination. Unlike Mark Meadows, Clark refused to take the witness stand at the September 18 evidentiary hearing, and there was no universe in which Trump himself was going to show up and testify on his behalf.
In contrast, the state produced Jody Hunt, Clark’s predecessor at the Civil Division, who testified that election cases were in no way related to his job duties. Asked about Clark’s bizarre argument that defending the vice president in an election lawsuit was proof that he had responsibility for election fraud, Hunt noted that it was Clark’s job to defend executive branch officials in all civil cases.
“Other than his counsel’s own vague and uncertain assertions, the Court has no evidence that the President directed Clark to work on election-related matters generally or to write the December 28 letter to the Georgia State Officials on their election procedures,” Judge Jones wrote. “Instead, the evidence before this Court does not show the President’s involvement in this letter specifically until the January 3 meeting where the President decided not to send it to the Georgia officials.”
“The bar for federal officer removal is indeed low, but the removing party still bears a burden to show a jurisdictional basis for the removal,” the court went on, before concluding that the defendant “has failed to offer sufficient evidence that the acts alleged in the Indictment related to the color of his office.”
Clark’s lawyers made an odd argument that they were also challenging the legitimacy of the special purpose grand jury which originally investigated election interference in 2020. Ignoring the conclusion of multiple courts that the SPGJ was a criminal body, Clark insisted that it was civil, and thus his petition was somehow a civil/criminal chimera and he could avail himself of the automatic stay provision of the civil removal statute. Having already rejected this uh … creative position, Judge Jones could barely be bothered to deal with it here, except to note that the SPGJ closed up shop nine months ago, and “Clark has not provided any authority showing that a concluded special purpose grand jury proceeding can be removed to the federal court.”
And so Clark finds himself back in state court, where BREAKING his co-defendant Scott Hall, a Georgia bail bondsman, has just flipped and pleaded guilty this afternoon. Aside from the election letter, Clark’s only overt act alleged in the Georgia indictment was a phone conversation with Hall. So … more good news for Jeff.
State of Georgia v. Clark [Docket via Court Listener]
Elizabeth Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.
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