Trump DOJ Official Jeffrey Clark Wanted Georgia Legislature To Get To Coup-ing, For CONSTITUTION
One day, we will not find ourselves writing yet another article on just how close we came to losing our democracy during the Trump administration. But that day is not today! Because today we are trying to digest this draft letter by former DOJ official Jeffrey Clark advising the Georgia legislature to go forth and do coups for the Constitution.
In January, the New York Times reported that Trump had tried to elevate Clark to acting attorney general, replacing Jeffrey Rosen, who had replaced Bill Barr all of a week before. Rosen, then the acting attorney general, was annoyingly unmoved by Trump's exhortations to "Just say the election was corrupt and leave the rest to me and the R[epublicans]." But Clark suffered from no such scruple, and Trump hoped — with less than a month to go in his presidency — to install him atop the DOJ and watch him launch investigations of non-existent vote irregularities which would be used as pretext to invalidate ballots in enough swing states to keep Trump squatting in the Oval Office for all eternity.
Only threats by his entire senior legal team to resign persuaded Trump not to go through with it. And in light of ABC's recent revelations, it's clear we dodged a major bullet there. So, thanks to Jeffrey Rosen and Pat Cipollone for doing the right thing that one time, we guess.
ABC reports that on December 28, Clark circulated the proposed text of this letter to Georgia Gov. Brian Kemp, as well as the Republican heads of both houses of the state legislature, urging them to convene a special session to re-allocate the state's 16 electoral votes.
"The Department of Justice is investigating various irregularities in the 2020 election for the President of the United States," he wrote. Without evidence, Clark warned of "significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia."
"In light of these developments, the Department recommends that the Georgia General Assembly should convene in a special session so that its legislators are in a position to take additional testimony, receive new evidence, and deliberate on the matter consistent with its duties under the U.S. Constitution."
Sure, the Constitution required the Electoral College to finalize its certification on December 14, two weeks before Clark scribbled out this little note. But if the state lege could just kick enough dust in the air, then maybe on January 6 Congress would decide to certify the slates of cosplay electors that swore themselves in even though their guy lost on November 3. Gotta fake it 'til you make it, right?
Clark wrote: "The Department believes that in Georgia and several other States, both a slate of electors supporting Joseph R. Biden, Jr. and a separate slate of electors supporting Donald J. Trump, gathered on that day at the proper location to cast their ballots and that both sets of ballots have been transferred to Washington, D.C., to be opened by Vice President Pence."
In point of fact, the Department believed no such thing. Before he noped out, Bill Barr gave an interview with the AP in which he admitted, "To date, we have not seen fraud on a scale that could have affected a different outcome in the election." And while Clark was nuttering away, Rosen and his deputies were diligently fending off pressure from the White House to do what Clark was proposing, while trying to debunk a raft of insane shit about Obama attacking the election with Italian space lasers.
"Sir we have done dozens of investig[ations], hundreds of interviews, major allegations are not supported by evid[ence] developed," Rosen told Trump on a December 27 phone call, as his deputy Richard Donoghue took notes.
And to his credit, Georgia Gov. Brian Kemp wasn't playing along either, steadfastly refusing to convene a special session of the legislature so they could mount a legislative coup to overturn the will of the voters.
"This is not an option under state or federal law," Kemp said on November 29. "The statute is clear. The legislature can only direct an alternative method for choosing presidential electors if the election was not able to be held on the date set by federal law."
But our man Clark had a solution to that one, too. What if the legislature magically had the ability to convene itself because CONSTITUTION?
While the Department of Justice believes the Governor of Georgia should immediately call a special session to consider this important and urgent matter, if he declines to do so, we share with you our view that the Georgia General Assembly has implied authority under the Constitution of the United States to call itself into special session for the limited purpose of considering issues pertaining to the appointment of Presidential Electors.
He followed it up with several paragraphs of gobbledygook about the legislature's "plenary" authority to appoint Electors, hoping to obscure the fact that Clark wanted the federal government to tell the state legislature to disregard its own state constitution to keep the man who lost both the popular vote and the Electoral College in power.
As constitutional law professor Steve Vladeck notes on Twitter, "This letter is crazy on so many levels. But the argument that the *federal* Constitution gives state legislatures the 'implied' power to call themselves into session—when their state constitution doesn't—is just about the most ridiculous conception of 'federalism' I've ever seen."
But Clark was unbothered by the cognitive dissonance.
"Personally, I see no valid downsides to sending out the letter," he wrote in an accompanying memo to the draft email. "I put it together quickly and would want to do a formal cite check before sending but I don't think we should let unnecessary moss grow on this." Then he pivoted to asking for authorization to sit down with Director of National Intelligence John Ratcliffe to discuss whether Dominion voting machines could be "accessed the Internet through a smart thermostat with a net connection trail leading back to China." You know, to check the cites formally — wouldn't want to go off half-cocked here!
OVER MY DEAD BODY, said Rosen, more or less: "I confirmed again today that I am not prepared to sign such a letter."
And Donoghue was even less impressed than his boss.
"There is no chance that I would sign this letter or anything remotely like this," he wrote. "While it maybe true that the Department 'is investigating various irregularities in the 2020 election for President' (something we typically would not state publicly) the investigations that I am aware of relate to suspicions of misconduct that are of such a small scale that they simply would not impact the outcome of the Presidential Election."
"I cannot imagine a scenario in which the Department would recommend that a State assemble its legislature to determine whether already-certified election results should somehow be overriden by legislative action," he added, pointing out that no new evidence of fraud had emerged since Barr had vamoosed out of there, and the DOJ wasn't going to launch a coup based on internet speculation.
And the country was saved. For a little while longer at least. And HOOBOY, that's going to be one batshit crazy inspector general's report.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.