Did former President Donald Trump ask then-Assistant Attorney General Jeff Clark’s legal opinion concerning Department of Justice options for addressing voting irregularities in Georgia, or did Clark volunteer his legal analysis on the question without the president’s prompting?
The federal judge presiding over Clark’s removal case, who will decide whether Clark must defend himself in the Democrat stronghold of Fulton County or in a Georgia federal court, focused on that question during last week’s hearing. In doing so, the judge revealed just how crazy—and dangerous—this political prosecution is to the future of our constitutional republic.
Currently, Clark faces criminal charges in Fulton County, Georgia, after get-Trump prosecutor Fani Willis obtained a sprawling grand jury indictment against him and 18 co-defendants, including former President Donald Trump. That mid-August indictment charged the defendants with supposed crimes related to “alleged postelection interference with the 2020 presidential election in Georgia.”
A week after the indictment dropped, Clark sought to remove the criminal case against him to federal court, based on a federal statute, codified at § 1442(a)(1). That removal statute provides that a “criminal prosecution that is commenced in a State court” against an “officer” of the United States or any federal agency may “remove” the case to a federal court if the prosecution is “for or relating to any act under color of such office…”
A 2020 Draft Letter to Georgia Lawmakers
In arguing for removal, Clark stressed that Willis’s charge against him rested on a Dec. 28, 2020 draft letter he presented in his role as assistant attorney general to his superiors, Jeff Rosen, then acting attorney general, and Richard Donoghue, then deputy attorney general. Clark urged Rosen and Donoghue to sign the letter addressed to the Georgia governor, the Georgia speaker of the House, and the Georgia president pro tempore of the Senate.
It stated that the DOJ was “investigating various irregularities in the 2020 election for President of the United States” and noted that “we have identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.”
“In light of these developments,” Clark’s proposed letter continued, “the Department recommends that the Georgia General Assembly should convene in 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.”
Drafting Legal Opinion Letter Isn't a Crime
Rosen and Donoghue refused to sign the letter and took issue with Clark’s view of the facts. That made Clark’s drafting of the letter a crime, according to the Fulton County indictment that charged him with “criminal attempt to commit false statements and writings” for drafting that letter, presenting it in an email to Rosen and Donoghue, and later meeting with the two on January 2, 2021, to seek authorization to send the draft letter.
But if it were a crime—something Clark strenuously challenges, stressing he was merely presenting his legal analysis of the issue—then Willis is seeking to prosecute him “for or relating to” conduct he undertook “under color of” his federal office. Thus, according to Clark, he has the right to remove the criminal case to federal court.
Last Monday, Judge Jones held an evidentiary issue on the issue. Initially, attorneys for Willis argued Clark was not acting “under color of” his federal office, by positing that the assistant attorney general for the civil division had no role in investigating or pursuing election cases on behalf of the federal government.
To support that argument, Willis pointed to previous statements by Rosen and Donoghue, both of whom disagreed with Clark’s position and maintained it was not for Clark or the Department of Justice to involve itself in Georgia election issues. Willis also presented testimony from Joseph “Jody” Hunt. Hunt, who served as assistant attorney general of the civil division from August 2018 until July 2020, testified on Monday that Clark, in effect, was out of his civil division lane in drafting the letter.
President Wanted to Hear Clark’s Opinion
But, as Clark’s attorney stressed during the hearing, as an assistant attorney general Clark held authority to advise the president on all relevant issues, not just those within the province of the civil division. And, as Clark’s lawyer stressed, President Trump wanted to hear Clark’s legal opinion. The then-president met on January 3, 2021, with Rosen, Donahue, and Clark in the Oval Office, along with “six other senior administration lawyers from DOJ and the White House.” There the group discussed Clark’s draft letter for three-and-a-half hours.
While in the end Trump opted against sending the letter to Georgia, that the president huddled with the lawyers—including Clark—to discuss the issue confirms Clark was acting within the color of his office as a former assistant attorney general.
Judge Jones, however, seemed to see the issue differently, as demonstrated by his query of whether former President Trump had solicited Clark’s opinion or whether Clark, in violation of Department of Justice protocols, had reached out to the president first. The mere posing of this question exposes how far afield this entire prosecution has become.
Donald Trump was the head of the executive branch of government. Whether Trump solicited Clark’s opinion or Clark ignored Department of Justice protocol to present what Clark believed the best course of action to the president is not the court’s concern. And it is definitely not the concern of a county prosecutor.
President Decides Executive Branch Protocol
If Clark was out of line, if Clark acted outside the color of his office, that was for the president of the United States to decide. By obtaining Clark’s advice and weighing it against the advice of others in the Department of Justice, the president confirmed Clark was acting under the color of his office as assistant attorney general of the civil division at the time.
In short, that Clark violated department protocols, or even assumed functions beyond his normal authority, matters not because the president is the executive and the president holds the authority over the Department of Justice.
Consider, for instance, another scenario: An assistant attorney general bypasses protocols to inform then-President Trump that then-FBI Director James Comey was running a covert investigation into Michael Flynn based on a Hillary Clinton-funded fake dossier. It would be ridiculous to say that such a hypothetical assistant attorney general was operating outside the color of his office by taking such concerns directly to the president.
The same is true here. Clark apparently believed the Department of Justice was not adequately investigating voting irregularities in the national election, and he attempted to argue that position to his superiors. While it is unclear whether Clark also went directly to Trump, even if he did, that does not mean Clark was acting outside the color of his position.
Judge Jones has yet to issue his decision on whether Clark properly removed the Fulton County criminal case to federal court, but if the federal judge rejects Clark’s efforts to remove the case and finds Clark acted outside the color of his office, that would represent a dangerous precedent calling into question not just Clark’s authority, but the authority of the president of the United States.