Jeffrey Clark cannot shake off ethics case with attempt to remand to federal court: Ruling

Background: Former Justice Department official Jeffrey Clark speaks during the Conservative Political Action Conference, CPAC 2024, at the National Harbor, in Oxon Hill, Md., Friday, Feb. 23, 2024. (AP Photo/Jose Luis Magana). Inset: FILE – President Donald Trump speaks during a rally protesting the electoral college certification of Joe Biden as President in Washington, Jan. 6, 2021. (AP Photo/Evan Vucci, File).

Jeffrey Clark , the former Justice Department attorney who allegedly conspired with former President Donald Trump to send state legislatures a letter falsely declaring that the department was concerned about rampant voter fraud in key battleground states during the 2020 election, has lost his bid to transfer his disbarment proceedings to federal court.

The ruling was handed down by the U.S. Court of Appeals for the District of Columbia on Friday.

Clark was found in violation of ethics rules for lawyers this April by the D.C. Bar Office of Disciplinary Counsel. During those hearings, testimony came from former Justice Department officials, including acting assistant attorney general Jeffrey Rosen, Rosen’s deputy Richard Donoghue and Richard Engel, the former head of the Office of Legal Counsel. All testified about Clark’s attempts to weaponize the department, advance Trump’s already-debunked claims about voter fraud and Clark’s efforts to supplant himself in the role of attorney general — at Trump’s request.

Ultimately, Clark’s letter to state legislatures was never sent and according to the testimony the men also provided to the now-defunct congressional committee investigating Jan. 6, it was a Jan. 3, 2021, meeting with Trump, Rosen, Donoghue and Engel that staved off the ascendancy of an otherwise low-level environmental lawyer to the powerful role of U.S. Attorney General. During that meeting, the men had vowed to quit if Trump went through with it. Then-White House attorney Pat Cipollone called the maneuver a “murder-suicide pact,” the committee learned.

Now, instead of disbarment for those alleged activities and others, Clark has sought lesser punishment including receiving only a reprimand.

At his disciplinary hearing, Clark opted against testifying and instead invoked his Fifth Amendment right against self-incrimination. He also asserted executive privilege and as Law&Crime reported , while he faced a slew of questions, he referred back to both wryly.

“Mr. Fox, the same answer. The Fifth Amendment privilege at this time. The executive privilege. The law enforcement privilege. The deliberative process privilege and attorney-client privilege,” Clark told disciplinary counsel Hamilton Fox III.

“A veritable phalanx of privileges,” he added.

With charges from the D.C. Bar Office of Disciplinary Counsel pending alleging that Clark engaged in dishonesty and the obstruction of the administration of justice in 2020, he has tried to have two subpoena proceedings — one from October 2022 and another from December 2022 — as well as a disciplinary hearing by the bar office removed to federal court and remanded to the Board on Professional Responsibility.

But according to Friday’s unsigned opinion, those subpoena enforcement proceedings are now “moot, so there is nothing left to remove.”

The disciplinary hearing itself, they added, was not removable to begin with and even if it was, Clark’s request to do so was “untimely.”

The ruling explains that when Clark’s subpoena proceedings were remanded to the D.C. Court of Appeals, that court denied the Disciplinary Counsel’s motion to enforce the subpoena, meaning that he already received the most relief he could hope to obtain: an order protecting him against compelled disclosure to specific to his October request.

That hearing ended, the factual record was made complete and, the per curiam opinion notes, the disciplinary office communicated that it did not intend to use any other subpoenas or accept any further documents on the matter.

Regarding the December subpoena, the court noted that Clark had “voluntarily produced” records for that — albeit a year after the subpoena was issued — but nevertheless, Friday’s order recalled that the Disciplinary Counsel did not ultimately seek to enforce that subpoena.

“And Clark has not sought any kind of ‘partial remedy, such as ordering the return or destruction of disputed materials’ that could prove mootness. Indeed his reply brief raises no opposition to Disciplinary Counsel’s observation that the December subpoena is moot,” the ruling states.

Particular to Clark’s request on the D.C. Bar disciplinary hearing, that matter was time-barred, the court explains, because a party in a civil action has just 30 days to remove a case after being served with the initial pleading and moreover, attorneys who are disciplined by the Bar see those proceedings begin as soon as a petition is filed with the Board on Professional Responsibility.

Records indicate Clark had until August 2022 to file his notice to remove the case.

He waited until October.

Clark has argued that the 30-day time limit didn’t apply because an attorney discipline proceeding is “quasi-criminal in nature” and removable any time before a trial.

But the D.C. Court of Appeals has already held that the disciplinary proceedings are not in any way a criminal prosecution, the per curiam opinion states.

Clark’s contention that the real tolling of the 30-day removal clock did not start until September 2022 was also foreclosed. Whether it applies to a federal officer or general removal statutes, the timeliness of that removal notice hangs on the date the defendant received a “pleading, motion, order or other paper” that establishes the case is one that actually can be removed or already has been.

The per curiam decision puts a damper on any hopes Clark may have had to drag disbarment proceedings out any longer and with the 2024 presidential election less than 120 days away, as a long time and vocal ally to Trump — he notably attended the former president’s hush-money and election interference trial in Manhattan — a disbarment could doom chances Trump would welcome him back into the Justice Department should Trump be reelected.

Clark was also indicted alongside Trump in the racketeering case in Georgia for alleged attempts to overturn the 2020 election and prosecutors say his letter as well as long phone call he had with a Georgia bail bondsman about the election, Scott Graham Hall, were integral to those charges.

Clark’s alleged conduct in the run-up to Jan. 6 was also central to Jack Smith’s Jan. 6 indictment of Donald Trump in Washington, D.C., but in the wake of the Supreme Court’s immunity ruling, that may no longer be the case .

Chief Justice John Roberts wrote in that ruling:

The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. Because the president cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from the prosecution for the alleged conduct involving his discussions with Justice Department officials.

The post Jeffrey Clark cannot shake off ethics case with attempt to remand to federal court: Ruling first appeared on Law & Crime .