It’s shameful.
I commend Mario Loyola for his comprehensive, compelling explanation of why it is outrageous for the District of Columbia bar to attempt to suspend Jeffrey Clark from practicing law — indeed, why it is outrageous for the courts of the District of Columbia, which are creatures of statutes enacted by the federal legislative branch, to intrude into the deliberations of the federal executive branch’s top echelon.
As Mario contends, the irony is that, under the guise of enforcing legal ethics, the bar is flagrantly violating well-known legal privileges, under the preposterous rubric of “attempted intentional dishonesty.” That is to say, under circumstances in which it is not enough to say there was no criminal misconduct because there was nothing close to the commission of criminal misconduct. In other words, this is lawfare through and through. It’s shameful.
I want to make three points.
First, the civil rights laws give the federal government jurisdiction to investigate election irregularities at the state level. No one knows this better than Democrats: Biden Justice Department special counsel Jack Smith indicted President Trump for a civil rights violation on the (dubious) theory that he interfered with voting in a presidential election, over which state governments preside.
In an investigation, the Justice Department receives information and runs it down, as rapidly as the situation reasonably permits. In the crunched time frame — just a few weeks between Election Day and the certification of state electoral votes — there are apt to be many allegations of voting fraud which, while serious in the sense of raising alarms, will not rise to the level of outcome-determinative fraud (i.e., what must be proved to even get into the ballpark of endeavoring to reverse the election result). It takes an investigation for the Justice Department to uncover whether suspicion of fraud is actual fraud and, finally, outcome-determinative fraud. Prosecutors do not dismiss allegations or suspicions simply because they do not appear, at first blush, to be outcome-determinative.
In this instance, moreover, if the Justice Department had not taken fraud allegations seriously and attempted to determine whether they were valid, Attorney General Bill Barr would not have been in a position to state that no outcome-determinative fraud had been found — even though, in that fraught moment, such a public disclosure was certain to turn the Oval Office into Mount Vesuvius. Barr’s announcement, we should remember, was widely praised — to my mind, appropriately so.
Like many legal commentators, I look unfavorably on Clark’s “proof of concept” draft, which could be construed to imply that the Justice Department had found potentially outcome-determinative fraud when it had not (though it was still running down various allegations). As we learned of the story, I was sympathetic to the views of then-Acting Attorney General Jeffrey Rosen and other top DOJ officials, who derided Clark’s document.
Still, it is a commonplace in the Justice Department that prosecutors make suggestions that, on close inspection, are legally infirm and/or inaccurately articulated. That is not misconduct. It is the deliberative process. And if we’re to have adequate law enforcement, prosecutors must be uninhibited in presenting theories of investigation and prosecution to their superiors.
A lot of law enforcement — and, closely related, a lot of national security — is a legal gray area. Decisions have to be made about whether there are, say, adequate grounds to predicate an investigation, sufficient articulable suspicion to justify brief investigative detention and a physical frisk, probable cause to justify an arrest or search, or reasonable apprehension of imminent harm to warrant the use of force. Reasonable minds differ. Some officials are innately aggressive, and others are immovably cautious. Consequently, there are significant disagreements about what is in or outside the blurry foul lines, to say nothing of what seem to be the best investigative options in fair territory.
That is why there must be collaboration. That is why the Justice Department, every U.S. attorney’s office, and every state and municipal district attorney’s office has a chain of command and requires supervisory sign-offs for important investigative steps. And our court system has energetic trial judges and multiple layers of appellate review because judgments about law and the sufficiency of the evidence, based on which law is applied, can be very tough calls. So much so that arguments over some of them are never really settled. The humility of Justice Robert Jackson about Supreme Court decisions is worth remembering: “We’re not final because we are infallible, but we are infallible because we are final.”
That deliberative process must be allowed to play out in confidence. If participants come to fear they will be hounded by professional boards for suggestions made during decision-making, law enforcement will be paralyzed, and crime will surge.
Of course prosecutors must be judged on the decisions they make that result in concrete actions on or over the edge of legality. But not on proposals that never become actions, such as Clark’s — proposals that should never see the light of day. And when such mere proposals are illegally exposed, no matter how harebrained we may assess them to be, and no matter how indelibly they inform our opinions about the proposers, we should have contempt for the leakers if they are lawyers well versed in the privileges and stakes involved. If disciplinary action is to be taken, those are the lawyers who should be targeted.
Second, it is ludicrous to apply the criminal-law concept of attempt to discussions about how to exercise investigative or prosecutorial discretion. In many jurisdictions (Mario discusses the law of the District of Columbia, venue for the proceedings against Clark), the crime of attempt requires proof beyond a reasonable doubt of (1) an intent to violate a criminal law, plus (2) actions in furtherance of that objective that amount to a “substantial step,” as opposed to “mere preparation.” The law requires proof of at least some meaningful action because we don’t want people punished for little more than evil thoughts; but that said, we criminalize attempt because attempted crimes can endanger society.
For example, I have prosecuted criminals for attempted bombing and attempted murder. In some cases, the best evidence of intent was the fact that the conspirators had previously committed bombing and murder — making it unreasonable to let them get far along in their plotting of subsequent bombings and murders if law enforcement was in a position to disrupt them. (In Willful Blindness, my memoir about prosecuting jihadists in the 90s, I described the tension in undercover investigations of intent crimes between prosecutors, who want as much evidence of planning as possible in order to satisfy the “substantial step” standard, and FBI agents, who know grievous harm (for which they will be blamed by the public) can occur if the planning evolves into completed violent crimes.)
The substantial steps along the way to serious crimes are often themselves crimes. Bombers construct explosives that are often amateurish and, as a result, unstable and dangerous while in storage prior to being deployed. Murderers acquire illegal firearms or obliterate the guns’ serial numbers, making their use in other violent crimes more likely. Criminals steal cars, intending to make their anticipated flight after violent acts harder to trace.
We thus criminalize attempted crime itself because both the objective and the measures taken to achieve it imperil us. Those are also among the reasons we criminalize conspiracy, another so-called thought crime.
Prosecutorial deliberations over investigative steps are not analogous to attempted crime. Their aim is the antithesis: to ensure that law enforcement can protect the public without violating the law. The concept of criminal attempt has no proper place in an inquiry into Justice Department discussions about how to investigate allegations of election fraud.
Third and finally, I return to the subject of immunity, which I’ve repeatedly argued — however futilely — should dissuade President Trump from lawfare tactics against officials who arguably abused their power in pursuing him. It was, after all, the Supreme Court’s immunity ruling (Trump v. United States) that enabled him to fight off those abuses and win the 2024 election.
Lesser public officials may not have the same broad scope of protections a president has (the latter enjoys at least presumptive immunity for all executive acts, and absolute immunity for core executive acts). They are, however, protected by the same principles.
As Mario details, Clark has the support of a compelling amicus brief filed by former United States Attorneys General Barr, Michael Mukasey, and Jeff Sessions. On immunity, the former AGs make two vital points. First, the qualified immunity of public officials shields them unless it can be established that they had ample reason to know an action violated the law, or they are shown to have taken illegal action with malicious intent. Second, Clark’s is the rare case in which the deliberations at issue have already been considered by the Supreme Court (in Trump), which found them to be at the core of executive power: the realm in which the president must be able to get candid advice from his subordinates and take actions — even extremely controversial actions — without fear of later criminal prosecution or civil suit.
Clark’s actions thus occurred at the intersection between his own qualified immunity and the president’s absolute immunity. And again, none of his actions resulted in even arguably illegal conduct; his conduct thus compares favorably to that found in the lion’s share of litigated immunity cases.
Constitutionally and factually, it is egregious for a D.C. professional board to even think about depriving Clark of his livelihood over his performance as a federal executive branch official engaged in high-level deliberations that included the acting attorney general and the president himself. Or at least it should be egregious. Instead, it has become typical. Bar associations are controlled by progressive legal elites. Since the end of Trump’s first term, they have been on a jihad to turn attorneys who served Trump into pariahs. Mind you, this is the same Lawyer Left that couldn’t heap enough praise on attorneys who contributed their services to jihadist enemy combatants after al-Qaeda killed nearly 3,000 Americans on 9/11.
Readers of these columns know I could not be more emphatic in my revulsion over the current administration’s lawfare campaign, and my chagrin that President Trump cannot be satisfied with the historic privilege of a four-year term in the world’s most consequential job as his retribution over the lawfare wrongs done to him. That said, when I look at what Democrats are still trying to do to Jeffrey Clark, I must concede that they are certain to pick up right where they left off the moment they get back into power. That being the case, and wired the way he is, why would president would pay a bit of attention to me and others imploring him to stop abusing legal processes?