Attorney defied ethics
One of the most troubling aspects of the lawless Trump era has been the conduct of so many lawyers who cast aside their professional obligations and brought frivolous suits on behalf of a defeated president. Some actively participated in the coup plot.
Only a few bar proceedings to date have begun to evaluate potential misconduct and possibly disbar miscreants. One of them, the D.C. Bar, took up the cause of enforcing ethical standards last week, holding a hearing in anticipation of more extensive fact-finding and briefing regarding the conduct of former Justice Department official Jeffrey Clark.
Clark, you might recall, tried to wheedle his way into the post of acting attorney general and encouraged Trump’s notion that the election could be reversed. Clark put together a letter seeking to cajole states to invalidate the choices of their voters by appointing alternate slates of electors.
The draft began with this blatant lie: “The Department of Justice is investigating various irregularities in the 2020 election for President of the United States. The Department will update you as we are able on investigatory progress, but at this time we have identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.” That’s false. There were never significant concerns about the validity of the count. He continued, “No doubt many of Georgia’s state legislators are aware of irregularities, sworn to by a variety of witnesses, and we have taken notice of their complaints.” There were no such irregularities.
This letter, which he presumably intended to send to a batch of states, would have thrown those electoral ballots into disarray. Thankfully, his superiors refused to go along with the stunt. But Clark continued to plead with President Donald Trump to replace the acting attorney general and allow him to send the letters. The only reason Trump did not do so is because Justice officials warned him that it would have resulted in mass resignations.
Now Clark is being called to account for his conduct. Ethics guru Norman Eisen, who served as co-counsel for the House Judiciary Committee during Trump’s first impeachment, helped draft a complaint letter that may have precipitated the bar investigation. Simply put, Eisen tells me, “Legal ethics rules do not contemplate attempted coups as a permissible activity” for lawyers.
The bar could determine that Clark violated ethics rules prohibiting “conduct involving dishonesty, fraud, deceit, or misrepresentation” and engaged in conduct that “seriously interferes with the administration of justice” (i.e., counting electoral votes and peaceful transition of power).
Eisen’s complaint letter makes a powerful argument:
“Mr. Clark’s proposed letter was an official request by the Department of Justice of the United States for the Georgia Legislature to call itself into session and substitute its own presidential electors for those chosen by Georgia citizens. It was based on fabricated and fictional concerns. Even worse, Mr. Clark proposed to Messrs. Rosen and Donoghue that the Department of Justice send a similar letter to other unnamed states without any evidence, so far as appears in the public record, that the certifications resulting from similar administrative processes in those states were unreliable.
“It is difficult to think of graver, more disruptive or more consequential interference with the administration of justice than what Mr. Clark was proposing. Simply to state his proposal is to comprehend the disruptive chaos such a letter would produce as it either shredded public confidence in carefully examined, tested and certified election results or shook confidence in the fairness and impartiality of the Department of Justice itself. … Mr. Clark attempted in an unprecedented way to ‘engage in conduct that seriously interferes with the administration of justice.’”
Clark has denied wrongdoing and has argued that the bar lacks jurisdiction over government lawyers.
Reuters reported, “Hamilton ‘Phil’ Fox, the head of the D.C. bar’s Office of Disciplinary Counsel, disclosed his plans to call former Acting Attorney General Jeff Rosen and former Acting Deputy Attorney General Rich Donoghue as witnesses during a D.C. bar ethics committee hearing on Thursday.” Given their damning testimony before the House Jan. 6, 2021, select committee, in which they explained that Clark had no basis for pursuing his scheme, this likely will not go well for Clark.
At the hearing on Thursday before a three-attorney panel, Clark’s counsel advanced the notion that it is not illegal to make a dumb suggestion. Fox agreed, but much more is at issue here. Not only has federal district court found probable cause to search Clark’s phone, but another federal judge, David O. Carter, has already signaled that it is likely Trump and his allies, including Trump lawyer John Eastman, engaged in illegal conduct. If Eastman’s conduct in cooking up the phony elector plot and effort to steal the presidency likely violated federal law, according to Carter, Clark may have a tough time explaining how his aspect of the scheme was a perfectly legal suggestion.
Clark has not been indicted, and his bar disciplinary process has only begun. Nevertheless, his case should serve as a flashing red light to other attorneys: If you participate in an effort to subvert an election, knowing there is no evidence of fraud, or misrepresent facts to federal investigators, you’re putting yourself in legal jeopardy — and possibly at risk of losing your law license.