A court order unsealed by a federal judge on Friday offers new details about the lengths the Justice Department has gone in recent months to investigate Jan. 6 and explore the contact among former allies and attorneys to former President Donald Trump.
The order—and the new information—bubbled to the surface after the Justice Department requested that U.S. District Court Chief Judge Beryl Howell unseal opinions she issued earlier this year. It is not clear why the Justice Department made this request. A spokesperson did not immediately return a request for comment.
One opinion written in June found that nearly 40 emails between ex-DOJ official Jeffrey Clark, his aide Ken Klukowski, and Republican Rep. Scott Perry of Pennsylvania were not protected by attorney-client privilege, as they earlier insisted.
Most interestingly, the Justice Department asked Judge Howell to review these exchanges specifically a full three months before Perry’s phone was seized by the FBI. Perry, as the new records would indicate, has been on the department’s Jan. 6 radar for quite a while. After his phone was seized in August an attorney for Perry, John Irving, told reporters that DOJ prosecutors informed him that his client was not a “target of its investigation.”
After the congressman’s phone was seized, he sued to have it returned but then abruptly asked the courts to put his lawsuit on hold. The legal dispute later went under seal.
Perry did not immediately return a request for comment to Daily Kos on Friday, nor did a representative from the Justice Department. It is not currently clear what the status of this case might be.
Separately, in another opinion from Judge Howell that was issued in September, the judge determined that some 331 documents belonging to Clark were also not protected under attorney-client privilege.
All told, the newly unsealed records state that a filter team tasked to review the correspondence pored over some 130,000 documents to assess their privilege.
Order Eastman Clark Klu by Daily Kos on Scribd
Trump once angled to install Jeffrey Clark as the nation’s attorney general as a part of his bid to overturn the results of the 2020 election and advance slates of fake electors from battleground states. Rep. Perry introduced Trump to Clark, who was an otherwise forgettable and middling figure at the Justice Department at the time but one with a soft spot for Trump’s bunk claims of voter fraud. Perry himself was a staunch ally to Trump and in frequent contact with Trump’s personal lawyer Rudy Giuliani as well as Trump’s chief of staff Mark Meadows. He regularly peddled wild voter fraud conspiracy theories and it was after a meeting with Perry that Meadows allegedly burned White House papers.
The right-leaning attorney John Eastman worked closely with a number of Trump’s personal attorneys and White House lawyers in the run-up to Jan. 6 and authored a six-point memo outlining an unconstitutional scheme to pressure then-Vice President Mike Pence to toss the electoral results during the joint session of Congress.
RELATED STORY: Pardons and a whole lot of pressure: An explosive day of testimony from Jan. 6 probe
Among the records from Clark disclosed in the order Friday, filter agents noted they were mostly “auto-saved draft files” of an autobiography in progress.
In this book outline, Clark described “growing up deplorable in Philadelphia” as well as his pathway to the Justice Department.
One part of the outline unwound Clark’s perspective around the 2020 election results and his role in the aftermath. Clark even described a now-infamous letter he mocked up for Trump but never ultimately sent. The letter, embedded below, recommended that state officials announce publicly that the DOJ had “taken notice” of election fraud and that a special legislative session was warranted to evaluate the alleged discrepancies.
No election fraud existed but the draft letter pointed to it anyway as it urged that a new slate of electors should be considered and appointed.
Trump, the newly unsealed details revealed Friday, told Clark it was a “good letter.”
Former acting attorney general Jeffrey Rosen, the man Clark tried to leapfrog at the department, told the Jan. 6 committee this summer that one of the main reasons the letter was never sent was because Trump backed down from the plan altogether once Rosen and other officials vowed to resign en masse if Clark was installed.
That threat to resign was delivered to Trump on Jan. 3, 2021, and according to Friday’s court record, Clark’s book outline offered a “detailed description” of that meeting between Trump, Rosen, and other high-level Justice Department officials.
Rejected Draft Letter From ... by Daily Kos
“Clark argued that the documents resembling autobiographies may hypothetically be shared with counsel for the purposes of ‘mitigation, establishing intent or general understanding of a client’s life situations and goals’ but [he] does not actually argue that he shared the outline drafts with his then-counsel for any of those reasons. Nor does the nature of the outline drafts indicate that they were designed with the purpose of seeking legal advice. Not only do the drafts expressly disclaim that the ‘outline reveals privileged information,’ they also fail to list any questions requiring the legal advice of counsel,” Judge Howell wrote.
According to the Friday court filing, other emails flagged by filter agents deemed “unprotected” by attorney-client privilege and therefore available to investigators to review, included a trio of emails between Eastman and Perry from December 2020.
They were about a phone call, Howell noted, but she deemed them unsubstantial.
Three other exchanges—spread over a total of seven documents—involving Perry and Ken Klukowski were flagged. One email was sent on Nov. 11, 2020. Kuklowski thanked Perry for speaking with him and then attached a file dubbed “Electors Clause/The Legislature Option.” The file outlined arguments supporting the theory that the Constitution makes state legislatures the “final authority” on presidential elections.
The identity of the person who authored that document is unknown. Kuklowski did forward it to Perry “without any commentary suggesting that the document was prepared in anticipation for litigation,” Howell wrote.
A second email dated Dec. 23, 2020, contained only a link to a publicly-filed petition for certiorari. Kuklowski sent another email to Perry on Dec. 24, this time with a document labeled, “State Legislatures Can Self-Convene to Appoint Presidential Electors” attached.
“As the filter team points out, at the time these exchanges took place, Kuklowski was still employed in the federal government and therefore, Congressman Perry could not have been his client,” Howell wrote.
Attorney-client privilege only protects confidential correspondence between clients and their attorneys when the correspondence is for the express purpose of securing legal advice or services, the judge noted.
As John Eastman learned earlier this year when he tried to keep the Jan. 6 committee away from his records, there is a crime-fraud exception to attorney-client privilege.
Nineteen exchanges among Perry and Clark were flagged by filter agents, too. They spanned from June 2020 right through to February 2021. A few of those emails contained news articles that a third party sent to Clark, Perry, and other recipients. The party isn’t named in Howell’s order. Other emails show Clark and Perry corresponding after the inauguration of President Joe Biden. One email included “comments on a Roger Stone interview” and a forwarded Wall Street Journal article on Biden’s climate agenda. Another email from Clark discussed “Pennsylvania’s voting system.”
Clark also sent Perry his resume.
Talking Points Memo reported earlier this week that text logs obtained by the outlet showed Perry reaching out to Mark Meadows and urging him to seize voting machines and establish a “cyber team” to investigate voter fraud.
Well, that was an awesome way to finish out the 2022 election cycle! Co-hosts David Nir and David Beard revel in Raphael Warnock's runoff victory on this week's episode of The Downballot and take a deep dive into how it all came together. The Davids dig into the turnout shift between the first and second rounds of voting, what the demographic trends in the metro Atlanta area mean for Republicans, and why Democrats can trace their recent success in Georgia back to a race they lost: the famous Jon Ossoff special election in 2017.
We're also joined by one of our very favorite people, Daily Kos Elections alum Matt Booker, who shares his thoughts on the midterms and tells us about his work these days as a pollster. Matt explains some of the key ways in which private polling differs from public data; how the client surveys he was privy to did not foretell a red wave; and the mechanics of how researchers put together focus groups. Matt also reminisces about his time at "DKE University" and how his experience with us prepared him for the broader world of politics.