On Thursday, members of the Jan. 6 Committee temporarily halted a process leading to a full vote in the House for a criminal contempt referral for ex-Trump Department of Justice official Jeffrey Clark. The referral is not off the table altogether, but after Clark agreed to sit with investigators for a deposition again, he secured the brief reprieve.
Clark since October has refused to fully comply with the Jan. 6 committee’s request for records and testimony that they say is crucial to understanding how former President Donald Trump coordinated an attempted overthrow of the 2020 election.
Late Wednesday, after the committee approved the referral unanimously and readied it for review by the House Rules Committee—the next procedural stop before going to the full House for a vote— Clark informed the panel he would appear for deposition once more. He first appeared on Nov. 5 with attorney Harry MacDougald, but testimony was fruitless as Clark refused to answer any questions, citing a claim of executive privilege.
He eventually walked out of the 90-minute hearing and did not return.
This Saturday when he is deposed, Clark said he intends to invoke his Fifth Amendment right.
“Mr. Clark previously had the opportunity to make Fifth Amendment assertions on the record and declined,” Committee Chair Bennie Thompson said Thursday. “But a Fifth Amendment privilege assertion is very significant. So, the Select Committee has agreed to provide him another chance to come in and assert that privilege on a question-by-question basis, which he’s required to do by law if he’s making such a claim.”
House Rules Committee Chairman Jim McGovern, a Massachusetts Democrat, stated the stakes plainly for legislators in the chamber Thursday.
“If Mr. Clark does not comply on Saturday, this committee will be prepared to move forward with a vote on the House floor holding him in contempt of Congress,” he said.
A Senate report issued earlier this year demonstrated how Clark, at Trump’s alleged urging, engaged in a pressure campaign to oust his superiors at the Department of Justice if they wouldn’t go along with a plan to get the full force of the Justice Department behind Trump’s claims that the election was riddled with fraud. Clark drafted letters intended for officials in Georgia, a swing state, that made bogus claims suggesting the Department of Justice had evidence of widespread fraud. But when threats of mass of resignations at the Department of Justice bubbled up at Clark’s suggestion, the plan crumbled.
“Of course, this happened after the Department had repeatedly informed the President that his allegations of a stolen election were not true and were not supported by the evidence,” Committee Vice Chair Liz Cheney, a Wyoming Republican, said of the pressure campaign. “And this happened after dozens of courts had ruled against President Trump and his election fraud claims. And this happened after the Electoral College had certified the results of the election, as our Constitution requires.”
Clark, ultimately, never leapfrogged Assistant Attorney General Jeffrey Rosen as threatened, or Rosen’s deputy, Richard Donoghue. He also never got the letters out. But how the plan originated, who else was involved, and how things got as far as they did are all questions the committee wants to be answered by Clark.
Of his decision to invoke the Fifth Amendment, Cheney said Thursday: “Apparently, because he believes testimony about his interactions with President Trump would tend to incriminate him and thus may subject him to criminal prosecution, we will depose Mr. Clark on Saturday. And at that point, we will know exactly what testimony Clark believes may incriminate him.”
Rep. Jamie Raskin, a Maryland Democrat who also sits on the Jan. 6 committee, brushed away criticism from Republican lawmakers that they were putting the cart before the horse by pursuing a contempt referral with the second deposition newly scheduled.
But as Thompson said Thursday, they must remain at the ready to vote on the contempt referral since Clark has yet to bargain honestly and he’s delayed responses previously.
Clark has also claimed executive privilege precludes him from testifying. This argument appeared false to Raskin, a legal and constitutional scholar.
Both Rosen and Donoghue have testified “freely and fully” to the committee about the attack and the attempt to subvert the election, Raskin said, and they did so because the former president has not asserted executive privilege to stop Clark from testifying. On Aug. 2, Trump issued a letter through his attorney Doug Collins saying so.
At this stage and with Trump not asserting privilege, Clark’s obstinance has been palpable, Raskin lamented.
“The obverse [of contempt] is resentment,” Raskin said. “Mr. Clark doesn’t resent us. He has contempt for us. He thinks we are below him … he thinks the Representatives for the American people are below him. He knows his bosses have rendered full, complete testimony, he just thinks we’re beneath him.”
Clark not only claims that Trump’s assertion of executive privilege has stopped him from testifying, but he has also said he requires a ruling in an altogether separate case, Trump v. Thompson, to emerge before he can act.
But Democrats insist that case has no bearing on Clark’s case and as pointed out by Rep. Mary Gay Scanlon, a Pennsylvania Democrat, if Clark wanted to, he could sue at any time to quash the subpoena. But he has not done that.
Andrew Laufer, a civil rights attorney, told Daily Kos in an interview Thursday that he believes the Democrats’ position that according to an Aug. 2 letter, Trump never asserted executive privilege.
“Further in order to properly invoke any privilege, you first need to be asked a question. Clark refuses to do even that. Clark awaiting the courts is really a smokescreen. He still must comply with the subpoenas [for his] testimony and documents.”
Laufer, however, did not think the committee’s decision to delay the contempt referral another day was the most prudent move.
“Clark has been given multiple opportunities to comply with the subpoenas. He has failed to do so or move to quash them in court. His continued defiance demonstrates he has no good faith intention to ‘eventually’ comply,” Laufer said. “I believe the committee should have held him in contempt already. To allow him this opportunity on Saturday, after multiple attempts, may demonstrate a weaker resolve by the committee than what is necessary.”
Clark should appear before the committee on their terms, not his, he added.
“If I were to allow a client to act in the same manner in federal district court, my client would be arrested by federal marshals and I would be sanctioned,” Laufer said.