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Trump DOJ Lawyer Jeffrey Clark Lands It Like Hindenberg With Jan. 6 Committee
There's fucking around and finding out, and there's whatever this hot mess of insanity is.
Turns out former Justice Department lawyer Jeffrey B. Clark is just as good at lawyering as he is at staging coups. By which we mean he is hilariously, breathtakingly incompetent, and we would dissolve into puddles of laughter if the future of American democracy weren't at stake.
Remember that Clark had that very good and well-thought-out plan to shiv his former mentor Jeffrey Rosen, then the (acting) Attorney General, and take his job. Rosen and his deputy Richard Donoghue had already said NFW to Clark's proposed letter to Georgia election officials claiming that the DOJ was investigating fraud in the state and thus the legislature should feel free to convene and give all the electoral votes to Donald Trump. But Clark had been whispering in the old man's orange ear behind his boss's back, and only threats by the entire senior leadership of the DOJ and White House Counsel's Office to resign en masse persuaded the president not to let Clark carry out his insane plot.
After the House January 6 Select Committee subpoenaed Clark, Rosen, and Donoghue in October, Trump's lawyer Doug Collins (yes, that guy ) sent a bizarro letter saying that Trump wouldn't invoke executive privilege to stop them from testifying if the committee would simply agree not to call any more witnesses. Leave aside for the moment the issue of a former president invoking a privilege that belongs to the government and which has traditionally been understood to cover only the president's closest advisers. In no universe does a good faith privilege invocation function as a sword to beat back further inquiry, and there's no such thing as automatic backsies if preconditions aren't met. No, just no.
Once the DOJ said they weren't going to block the officials' testimony, Rosen, Donoghue, and the other Justice alums duly testified to both the Senate and House. But Clark, who may or may not have a lot more to fear than his erstwhile colleagues, took a different route. And that route was to grab the committee chair's gavel and beat himself over the head with it repeatedly.
After switching his representation to attorney Harry MacDougald, a Kraken alumnus, Clark persuaded the Select Committee to let him postpone his testimony to November 5. But on the day in question, he showed up with a 12-page letter making a generalized reference to various and sundry privileges and insisting that he could not possibly answer any questions on any topic at all. Nor would he be providing any subpoenaed documents. And although Trump hadn't specifically told him that he was invoking privilege, Clark was interpreting the conditionality in Collins's letter as an automatic edict of omertà.
Hilarity ensued, at least for legal bloggers who regard transcripts such as the one published last night by the Select Committee as manna from heaven.
"I would like to advise counsel and the committee that I delivered a letter to [Committee Counsel], which was addressed to Representative Thompson, on behalf of Mr. Clark that asserts executive privilege with respect to testimony and documents that have been subpoenaed from Mr. Clark," MacDougald began. "The grounds of our assertion are set forth in the letter. It is 12 pages. And, based on those objections, we do not intend to answer any questions or produce any documents today, but we have appeared in compliance with the subpoena in order to assert those objections, as opposed to just refusing to show up."
If MacDougald and Clark thought they could simply wave a sheaf of papers at the committee members and be on their merry way, they thought wrong.
Committee Counsel noted that they intended to ask questions far afield from any plausible invocation of privilege, and wondered if Clark intended to refuse to answer those as well.
"Yes. That is our position," MacDougald answered gamely. "And the reason for that is that the privileges that are under the overall umbrella of executive privilege are numerous, including Presidential communications. In addition, as a Department of Justice official, there is a law enforcement privilege, law enforcement investigation privilege. There are — there is a deliberative process privilege. There are any number, not to mention the attorney-client privilege. So all of these things are applicable in this context. I understand that's disputed by the committee."
Indeed, it was disputed by the Committee.
REP. ADAM SCHIFF: What privilege are you asserting would apply to enable you to refuse to answer a question about whether you used personal electronic devices in the course of your government business?
MacDOUGALD: We're asserting privileges set forth in the letter, Congressman.
REP. SCHIFF: And what privilege in particular, because you refer to a number of privileges? So, for this specific question — that is, whether Mr. Clark used personal devices to communicate government business — which specific privilege enables Mr. Clark to refuse to answer that question?
MacDOUGALD: Given the lack of specificity of the question, we can do no more than allude to the privileges that are asserted in the letter, which are the full panoply of executive, Federal law enforcement, and so on, privileges that are in the letter, and plus the reservation that we've made. So, you know, I — again, with respect, Congressman, we do not want to engage in a debate or a law school set of hypotheticals about this.
It bears pointing out that you can't just shout PRIVILEGE and run out of the room, as MacDougald and Clark insisted was their right. You have to take each question as it comes and decline to answer it citing attorney-client privilege, or executive privilege, or, what the hell, doctor-patient privilege or priest-and-penitent, which are just as applicable as any of the rest of that horseshit when it comes to whether Clark used personal email to conduct government business.
And this right here is not how any of this goes :
REP. RASKIN: Who is the attorney, and who is the client in the attorney-client privilege being asserted in your letter?
MacDOUGALD: We're happy to engage in that dialogue in correspondence with committee counsel, but we're not going to do it in the deposition, Congressman.
But if you're looking for a clue as to how this goes and where it's going, check out this exchange with Rep. Liz Cheney:
REP. CHENEY: Thank you very much, yes. I'd like to ask the witness when he first met Congressman Scott Perry?
MacDOUGALD: I will assert the privilege objection to that question, respectfully, Congressman Cheney.
REP. CHENEY: And what's the basis for the privilege assertion about your meeting a Member of Congress?
MacDOUGALD: The privilege objection is set forth in the letter, Congressman. It's a detailed legal question, and the parameters of the privileges that attend aides and advisers to the President extends in many directions.
LETTER! He's got LETTER! Have you seen LETTER? Can't ask any questions because LETTER!
LOL, and also, how you livin', Rep. Perry?
In fact, Rep. Adam Kinzinger was not impressed with LETTER, appearing as it did five minutes before the hearing began.
REP. KINZINGER: Just — yeah. Just a real quick — and, since the letter is the focus, can you tell me when this letter, if you would, was completed? Did you finish it five minutes prior to coming in at 10 o'clock, being as you had a legal obligation to show up today, and is that why we just got this at this moment — your legal obligation was completed just a couple minutes ago — or had you had this in hand a few days prior when maybe you could have shared it and we would have been, you know, better armed to discuss since this is the only thing you're willing to discuss?
In the end, MacDougald and his client stomped off, which was ... a choice.
The Select Committee's choice was to schedule a December hearing to hold Clark in contempt of Congress. And they failed to be dissuaded by a couple of letters from MacDougald on November 29 explaining that the Select Committee isn't boss of Jeff Clark and Committee Chair Bennie Thompson isn't his real daddy because Big Daddy Trump said so.
In the first letter , MacDougald argued that the committee had no authority to issue subpoenas because there was no ranking Republican member. Sure, Liz Cheney's the Vice Chair, but she wasn't appointed by Minority Leader Kevin McCarthy, so it doesn't count. And anyway, the Wyoming GOP won't let Liz Cheney sit at their table any more, so is she even still a Republican?
The second letter veered totally off the rails into "Star Chamber" and "Queen of Hearts" and "Spanish Inquisition" and "the French monarchy's abuse of the lettre de cachet ." Before you ask, no, they didn't refer to the color of the fringe on the flag in the deposition room, but they did argue that the transcript was invalid because Clark refused to sign it. MacDougald finished his descent into wackassery by offering to let his client testify if the committee would agree to limit its questions to Clark's conversation with a Bloomberg reporter.
Last night the Select Committee met and voted to refer Clark to the whole Congress for a vote on a criminal contempt referral to the Justice Department, the way it did for Steve Bannon. But they're giving him one more chance to get his shit together on Saturday, when he's scheduled to come in and testify again. According to Committee Chair Bennie Thompson, Clark's planning to plead the Fifth.
Which is his right, of course. But he can't just shout "I PLEAD THE FIFTH" and wander off. He'll have to answer every question by either invoking his right against self-incrimination, or explaining exactly what privilege he thinks allows him to refuse to answer. And if he tries that shit he pulled last month, he's getting the Bannon treatment.
Good thing he hired that Kraken lawyer to keep him out of trouble, right?
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