The District of Columbia Board on Professional Responsibility recently dropped a 111-page tome recommending that Jeffrey Clark be disbarred for his actions while at the Department of Justice during President Donald Trump’s first term. In a development that should hopefully cause consternation for current DOJ attorneys, Clark is being disciplined for his actions undertaken in his official role at the DOJ.
With all the chaos of Trump’s current occupation of the White House, Clark may have slipped your mind. However, Clark was no slouch in the Big Lie era. For most of Trump’s first term, Clark was the assistant attorney general for the Environment and Natural Resources Division. He became the acting head of the Civil Division in the fall of 2020 and gave Trump a helping hand in trying to overturn the 2020 election.
He’s the one who tried to get the DOJ to issue a letter he wrote, saying the department was aware of election fraud in multiple states, including Georgia. This resulted in Clark having to appear before the Jan. 6 committee, where he pleaded the Fifth Amendment, and being criminally charged in Georgia state court along with Trump and a dozen-plus others. It also resulted in the Washington, D.C., bar opening disciplinary proceedings against Clark, leading to Thursday’s recommendation that he be disbarred.
It might be because Clark was already facing a bar investigation that he wasn’t rewarded with a high-level DOJ job like Trump’s former personal criminal defense attorneys. Too bad, since that appears to be one pathway to a lifetime seat on the federal bench, at least for Emil Bove. He does get to be the acting administrator for the Office of Information and Regulatory Affairs within the Office of Management and Budget, where it presumably doesn’t matter if he is allowed to practice law.
No matter how loyal Clark is to Trump, no matter how much power Trump amasses, Trump can’t force the D.C. bar to let Clark keep his license. It’s the same thing for John Eastman, one of the inventors of the fake elector scheme, who is facing disbarment in California.
Admission to the bar is regulated at the state level, and the federal government has no role in licensing attorneys. However, DOJ attorneys have to maintain an active bar membership in a state, territory, or the District of Columbia.
These days, what Clark is getting sanctioned for seems almost quaint. While the D.C. bar acknowledged that Clark may have had “sincere personal concerns” about the 2020 election, he still attempted to make intentionally false statements by urging the Justice Department to issue his Big Lie letter, as he knew that the Department had not identified any election fraud issues in Georgia or other states.
For the D.C. bar, this is both a slam dunk and a necessity: Clark “was prepared to cause the Justice Department to tell a lie about the status of its investigation of an important national issue (the integrity of the 2020 presidential election). Lawyers cannot advocate for any outcome based on false statements, and they certainly cannot urge others to do so. Respondent persistently and energetically sought to do just that on an important national issue. He should be disbarred as a consequence and to send a message to the rest of the Bar and to the public that this behavior will not be tolerated.”
The possibility that DOJ attorneys could face attorney discipline for false statements about an important national issue made in the course of their employment should strike the current denizens of that department as an existential threat, one that Trump can’t make go away. That didn’t stop Clark from trying, however, alleging that D.C.’s attorney discipline scheme is unconstitutional and that Trump’s immunity from prosecution somehow also covered him. Needless to say, the D.C. Bar did not seem inclined to apply Trump’s presidential immunity to Clark.
Clark also tried a Trumpy little separation of powers gambit, saying that the D.C. government had no right to be “second-guessing confidential internal deliberations at the highest level of the Executive Branch, including directly with the President himself in the Oval Office, regarding how to carry out the President’s core authorities under Article II.”
As the D.C. Board’s recommendation explains, though, nothing about disciplining Clark is about second-guessing any executive branch decisions. It’s about whether Clark violated the D.C. Rules of Professional Conduct, which apply to every lawyer admitted to the D.C. bar.
What has to be so maddening for Clark is that this sort of distraction and obfuscation works perfectly well for Trump, who continues to skirt any consequences whatsoever and who seems to be able to just yell “ARTICLE II” at the Supreme Court to get his way. But since the D.C. courts aren’t part of the federal judiciary, Clark is out of luck there.
Clark also tried to get the D.C. bar to let him turn everything into a Trumpian sideshow about election fraud versus Clark’s behavior. He asked that the disciplinary board reopen the record to permit discovery about whether “the lawfare-style weaponization of government against Mr. Clark by the Biden FBI, the January 6 Select Committee, the Jack Smith investigation, and ODC [the D.C. Office of Disciplinary Counsel] was coordinated.” He also wanted to subpoena an FBI investigative database.
You can almost hear the exasperation of the D.C. panel leaping off the page: “Whether the FBI should have investigated President Trump regarding the alternate slates of electors has nothing whatever to do with any of the facts relevant to Disciplinary Counsel’s charges.”
No matter how Clark dresses it up, lawyers get in trouble for violating their jurisdiction’s rules of professional conduct. Clark was dinged with violations of Rule 8.4 of the D.C. Rules of Professional Conduct. Lawyers are prohibited from engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation.”
What’s happening to Clark should serve as a cautionary tale: being at the DOJ does not guarantee protection from disciplinary action. Rather, the fact that Clark was informed by the DOJ employees actually in charge of such things that the DOJ had not uncovered any election fraud meant that continuing to get a letter out the door saying the opposite was, well, a lie.
That’s a violation of an attorney’s ethical duties, no matter how much Clark wants there to be some special carveout for attorneys who are lying on behalf of Trump. Current DOJ attorneys might wish to keep that in mind as they are dragooned into harassing “investigations” manufactured by current Civil Rights Division head Harmeet Dhillon based on whatever she sees on X when she wakes up. Trump might have a magic shield, but no one else does.