A federal judge on Monday heard diametrically opposed arguments as to whether Jeffrey Clark was acting within the scope of his official duties as an assistant U.S. Attorney General when he raised concerns about the outcome of the 2020 presidential election in Georgia.
Clark is mounting the second major challenge to the Fulton County election interference racketeering case against former President Donald Trump and 18 others. At the close of the three-hour hearing, U.S. District Judge Steve Jones said he will issue an order as soon as possible.
Jones, who asked pointed questions to Clark’s attorney, recently rejected former White House chief of staff Mark Meadows’ attempt to transfer the case from Fulton Superior Court to U.S. District Court in Atlanta where defendants may get a more politically conservative — and, perhaps, sympathetic — jury pool. To succeed, Clark must show he was that he was acting under the color of his office when he committed his alleged crimes.
Unlike Meadows, who took the stand and testified for four hours, Clark did not even attend the hearing.
Fulton prosecutor Donald Wakeford, in his closing argument, made note of Clark’s absence and the lack of evidence submitted by his attorneys. “There is nothing before your honor that would allow federal removal in this case,” the prosecutor said.
Clark’s lead attorney, Harry MacDougald, noted that in late 2020, Clark had a number of high-level meetings at the Justice Department about the election and even had a classified briefing on the matter. This culminated in a contentious Jan. 3, 2021, meeting at the Oval Office with Trump and other top officials as to whether the Justice Department should send a letter to Georgia raising concerns about alleged election fraud.
It’s “simply impossible” for Clark to have done that without acting as a federal official, MacDougald said. He also noted that Trump had sought out Clark’s advise and opinion, which in and of itself “is a complete ratification” he was acting within the scope of his duties.
But without Clark’s testimony or supporting documentation to back it up, there are only “vague allusions the president asked him to do something,” Wakeford said. " ... There has to be some basis in reality.”
Clark stands accused of two counts in the 41-count indictment: racketeering and criminal attempt to commit false statements and writings.
In the weeks following the election, Clark prepared a document that said the Justice Department had “identified significant concerns that may have impacted the outcome of the election in multiple states, including the state of Georgia,” the indictment said. It urged Georgia officials to consider appointing a new slate of presidential electors.
On Dec. 28, 2020, Clark sent an email to Acting U.S. Attorney General Jeffrey Rosen and Acting Deputy Attorney General Richard Donoghue, asking for permission to send the document to Gov. Brian Kemp, former House Speaker David Ralston and Butch Miller, then Senate pro tem.
At the Oval Office meeting less than a week later, Trump decided not to send the letter to Georgia after hearing strong objections from a number of attorneys. Even though the letter was never sent, Clark’s actions “constituted substantial steps toward the commission of false statements and writings,” the indictment alleges.
Wakeford said the response by top Justice Department officials to Clark’s proposed letter shows he was acting outside his lane as an assistant U.S. attorney general.
“He was immediately told: One, this is not true. Two, this is not your job. Three, this is not anyone’s job in the Department of Justice,” Wakeford said.
Jones appeared somewhat skeptical of a number of MacDougald’s contentions. What about the fact that what Clark had written in the letter was “completely inaccurate?” Jones asked. Did Clark violate Justice Department protocol by not getting approval to contact the president? And did Trump reach out to speak to Clark before or after he’d written that letter?
To the last question, MacDougal replied, “I don’t know the answer to that.”
As to whether Clark violated protocols, special prosecutor Anna Cross called former Assistant Attorney General Jody Hunt as the only witness in the hearing. After leaving the Justice Department in July 2020, Hunt represented Cassidy Hutchinson, a former Meadows’ aide who gave explosive testimony at the Jan. 6th congressional hearings and who testified before the Fulton special grand jury investigating the case.
Hunt testified that Clark, who served as Assistant Attorney General over the department’s civil division, did not have the responsibility to weed out election fraud. That would have been the province of either the civil rights or criminal divisions, Hunt said.
Hunt also noted that, since 1999, there was been a protocol in place requiring Justice Department officials to get approval from the attorney general or his top two assistants before engaging in discussions with members of the White House.
During the hearing, MacDougald sought to enter into evidence a written declaration from Clark who said that at no time “did I ever take knowingly false positions while at the Justice Department (or, to my knowledge, take false positions unknowingly, either.)” But Jones, after Cross objected and noted she could not cross-examine Clark, refused to enter Clark’s declaration into evidence.