In a meeting Wednesday night, the Jan. 6 Committee voted unanimously to approve a criminal contempt of Congress complaint for Trump Justice Department official Jeffrey Clark after he—for weeks—refused to fully cooperate with investigators probing the deadly Capitol attack.
Clark, once the acting head of the DOJ’s civil division under former President Donald Trump, cuts a striking figure in the insurrection probe. According to investigators, Clark engaged in a pressure campaign and subversion scheme aimed at overturning the 2020 election results at Trump’s behest.
Ahead of the vote to approve the recommendation, Clark told committee Chairman Bennie Thompson that he would sit for another deposition but he intended on invoking his Fifth Amendment right.
Clark will appear for a closed-door deposition this Saturday. A full transcript of the hearing will be released shortly thereafter. Thompson agreed to convene another deposition where Clark can assert his Fifth Amendment privilege on a question-by-question basis.
Committee vicechair Liz Cheney, just one of two Republicans on the panel, had a sharp warning for Trump as Wednesday’s meeting came to a finish.
Trump has suggested that he wishes to debate members of the committee, Cheney said.
And that invitation stands open but with a caveat for the former president.
“This committee's investigation into the violent assault on this Capitol is not a game. When this committee convenes hearings, witnesses will testify under oath," the Wyoming Republican said. "Any communication Trump has with the committee will be under oath. And if he insists on lying then, he will be accountable under the laws of this great nation and subject to criminal penalties for every false word he speaks."
A stream of the committee’s business meeting on Wednesday night is available here:
Clark is the second person to face down a contempt referral; Trump’s former strategist Steve Bannon was charged with two counts of contempt of Congress last month after he refused to submit records or testimony to the committee. Bannon entered a not-guilty plea and is currently awaiting trial. A trial date has yet to be set.
It is alleged Clark and Trump were in regular contact as the men coordinated a scheme to overturn the 2020 election results. The committee contends Clark was eager to coordinate the power grab but when he urged fellow Justice Department officials to send letters to swing states declaring that the DOJ was looking into “election irregularities” and that the appointment of new slates of electors was necessary, that plan went bust.
Now that the committee has voted to approve the 22-page contempt report for Clark, it then goes to the House Rules Committee for review, per standard procedure. Once vaulted out of that committee, it will be up to the full House of Representatives to vote and refer Clark’s criminal contempt charge to the Justice Department. The full House vote is expected this week.
A representative from the DOJ did not immediately respond to request for comment Wednesday.
In its findings, the Jan. 6 Committee alleges that Clark’s scheme kicked off just after Christmas Eve last year when Clark met with Trump unbeknownst to other DOJ leadership. What followed was Clark pushing then-acting attorney general Jeffrey Rosen and Rosen’s then-deputy, Richard Donoghue, to “tell key swing state legislatures that they should appoint alternate slates of electors following certification of the popular vote,” the report states.
Within three days of Clark’s Christmas Eve meeting with Trump—and well after more than three dozen courts had already found the administration’s claims of election fraud meritless—Clark drafted a letter intended for officials in Georgia, including the state’s governor Brian Kemp, and shared it with Rosen and Donoghue.
The Dec. 28 draft letter recommended that state officials say publicly that the DOJ had “taken notice” of election fraud and that a special legislative session was warranted to evaluate the supposed discrepancies. This way, Clark wrote in the draft letter, a new slate of electors could be considered and appointed.
Rosen and Donoghue refused the scheme, telling Clark the letter was a violation of department policy but Clark was undeterred. He kept up talks with Trump, investigators allege, and Trump in turn wanted to reward him by appointing him his acting attorney general.
Up until Jan. 2, just a few days before the Capitol siege, Clark told Rosen Trump has designs to replace him. Clark then told Rosen that he “might be persuaded to turn down the president’s offer to have him replace Rosen if Rosen sent out the proposed letters,” the contempt report states.
But Rosen refused and on Jan. 3, Clark told the acting attorney general he was replacing him. Several top White House advisers and members of DOJ leadership threatened to resign if the appointment went through, and the scheme fell apart.
Since the contempt report was published, a Jan. 6 committee aide confirmed to Daily Kos that Georgia Secretary of State Brad Raffensperger has been interviewed by the committee. Raffensperger was at the center of Trump’s pressure campaign targeting election results in Georgia after Biden won that state.
Raffensperger’s interview comes after weeks of Clark’s obstinacy. Jan. 6 committee chairman Bennie Thompson subpoenaed Clark on Oct. 13, slated his deposition for Oct. 29 and it was not until Nov. 5 that Clark finally appeared before the committee with his attorney Harry MacDougald.
A 50-page transcript from that deposition released this week by the committee paints a stark picture.
MacDougald, speaking on Clark’s behalf, was often impenetrable during the deposition. He told the committee plainly “We will not be answering any questions or producing any documents” as he insisted repeatedly that investigators direct their lines of questioning to statements offered by MacDougald in a 12-page letter provided to the committee the same day as deposition.
In it, MacDougald said Clark would not cooperate with the probe while courts were resolving a separate challenge from Trump to block the transfer of key records from the National Archives to the committee. MacDougald cited executive privilege and attorney-client privilege, and asserted that while Trump was in office, he was entitled to “confidential legal advice” from Clark.
Clark was a “Subject of sacred trust,” MacDougald said, and attempts to “invade that sphere of confidentiality must be resisted,” his attorney argued.
“Mr. MacDougald’s letter further stated that the ‘general category of executive privilege, the specific categories of presidential communications, law enforcement and the deliberative process privileges, as well as attorney client-privilege and the work product doctrine all harmonize on this point,’” Thompson wrote in the contempt report.
But nowhere, Thompson said, did MacDougald or Clark make any assertion of executive privilege or any “colorable claim to privilege.” Clark failed to produce even so much as a privilege log detailing what records specifically he wanted to claim privilege over.
In his subpoena, the committee demanded Clark turn over documents related to the DOJ’s probe into allegations of fraud in the 2020 election, any communication he had with Trump about the election as well as correspondence with any senior White House officials. Records tied to the Trump reelection campaign or to other members of Congress were also demanded.
The committee seeks records involving the selection of presidential electors and records of discussions where the congressional role in election certification is cited. Legislators also want records Clark may have where the role of the vice president in the certification process is mentioned.
“The Select Committee sought documents and testimony from Mr. Clark to obtain complete understanding of the attempts to use DOJ to delegitimize and disrupt the peaceful transfer of power following the 2020 presidential election, including illuminating the impetus for Mr. Clark’s involvement and with whom he was collaborating inside and outside government to advance these efforts, election security systems,” the report states.
During deposition, the select committee tried to carve out boundaries of privilege that Clark and MacDougald sought to assert. Lawmakers tried asking a series of questions including whether Clark used his personal phone or email for official business when he became engaged in the debate regarding Georgia’s election procedure, and what statements he made to the media regarding Jan. 6.
Clark refused to answer any of the questions and “declined to provide a specific basis for his position, instead pointing generally to his counsel’s 12-page Nov. 5 letter.”
During a break in Clark’s deposition, committee staff informed Clark that Thompson would get a ruling on the assertion of privilege but when the committee reconvened, MacDougald had already boarded a flight departing Washington. He did, however, email the committee a list of categorical claims to privilege.
“None of which are considered proper invocation by the committee,” the contempt report states, further noting that even if Trump previously invoked privilege over Clark’s testimony and document production, the law does not support blanket, or absolute claims of immunity even for senior presidential aides, which Clark was not.
Nor does the law, Thompson said in a letter to MacDougald, support non-specific assertions of executive privilege over the production of records to Congress.
As to claims that the former Trump official could not cooperate until the courts resolved the ex-president’s fight with the Archives, that matter was altogether “separate and distinct” from Clark’s privilege issues, the committee said.
Without a legal basis to support a broad claim of absolute immunity, the chairman threatened contempt.
Over weeks of back and forth and right up until Monday, MacDougald was still challenging the requests. This time arguing on Clark’s behalf that the committee lacks authority to issue subpoenas or request deposition, altogether. MacDougald also asked that Clark appear for a public hear where he would testify on matters that he deemed “appropriately tailored.”
“As the Select Committee has repeatedly pointed out to Mr. Clark, his claims of executive privilege are wholly without merit, but even if some privilege applied to aspects of Mr. Clark’s testimony or document production, he was required to assert any testimonial privilege on a question-by-question basis and produce a privilege log setting forth specific privilege claims for each withheld document,” the contempt report states. “Mr. Clark has done neither.”
At deposition, committee member Rep. Adam Schiff, a California Democrat, underlined to Clark that Justice Department officials superior to him had cooperated with the probe.
“The current Justice Department and the current President of the United States have not asserted privilege, in fact, have instructed Mr. Clark they will not assert privilege,” Schiff said on Nov. 5.
MacDougald shot back: “I think that if the committee is interested in pursuing the inquiry, balancing Mr. Clark’s interests in complying with his duties as a lawyer in light of President Trump’s invocation of privilege, the fair thing to do is to let the Trump v. Thompson case play out rather than badgering [the witness].”
Notably, in the letter MacDougald used to shield Clark from questions during depositions, he oddly attached another letter from Aug. 2. This one was from Doug Collins, an attorney for Trump.
In it, Collins said that Trump would not go to court to block Congress or other DOJ officials from testifying to investigators about matters related to Clark or the DOJ.
At deposition, MacDougald demanded lawmakers narrow their scope of questions and Schiff curtly Clark’s attorney that was precisely what he was before Congress to do.
“It’s not for me to narrow the scope,” MacDougald said.
“Answer the questions that you believe are within the scope and refuse, and then we can decide what repercussion from that refusal,” Schiff said. “But today, you are refusing to answer any questions—whether they’re within your perceived idea of the scope of the committee or not, is that correct?” Schiff said.
MacDougald referred back to the letter.
“I just wonder if Mr. Clark’s counsel has any authority for the proposition that he can categorically refuse to answer any questions as opposed to invoking the privilege he says he has with respect to the specific questions,” Rep. Jamie Raskin, a Maryland Democrat, said.
MacDougald again, referred back to the letter, saying their legal authority was defined there.
“Well, the letter seems to be the magic solution for everything,” Raskin said. “But could you name the Supreme Court decision that you’re referring to?”
MacDougald said neither he nor Clark would “engage in legal debate or argument” and that they would not “do a Q&A on legal points in this deposition.”
Clark would also not answer Republican Rep. Liz Cheney, the vice-chair of the committee when she asked if Clark ever had a meeting with Rep. Scott Perry, a Pennsylvania Republican. Perry was recently named chair of the hard-line, right-wing House Freedom Caucus.
According to The New York Times, Perry was the one who “first made Mr. Trump aware that a relatively obscure Justice Department official, Jeffrey Clark… was sympathetic to Mr. Trump’s view that the election had been stolen.”
Perry has not been subpoenaed by the committee.