LEGAL Trump signals intent to block testimony in Jeff Clark disciplinary proceedings

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1/17

Donald Trump has injected himself into disbarment proceedings against former Justice Department ally Jeff Clark, raising the specter that the former president will attempt to assert executive privilege to block crucial testimony from senior administration officials — or force months of litigation on the matter.

In a letter to Clark dated Jan. 12, Trump attorney Todd Blanche urged Clark to ensure that neither he nor other witnesses talk about confidential conversations they had while Trump was in office. Those conversations, Blanche said, could be covered by “Trump’s executive privilege and other related privileges, including law enforcement privilege, attorney client privilege, and deliberative process privilege.”

Clark is facing disciplinary charges in Washington, D.C., that could result in the loss of his law license. He is also facing criminal charges alongside Trump and other allies in Georgia for election interference there.

The Biden administration authorized Clark and other DOJ officials in July 2021 to disclose details of their confidential discussions with Trump. Trump’s lawyers at the time opted not to fight the decision but indicated in correspondence that they viewed the decision as “unlawful” and reserved the right to challenge it in the future.

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In his new letter, Blanche indicated that that moment could be at hand. Trump, he said, reserves the right to “intervene in any litigation involving these privileges.”

It’s the most direct move by Trump to shield a key ally from facing professional disciplinary consequences for his role in efforts to subvert the 2020 election. Trump made no similar effort to intervene when attorney John Eastman — who is also a Georgia co-defendant — faced a lengthy disbarment trial in California last year.

Two of the key former Trump administration officials whom D.C. bar investigators would like to call as witnesses in Clark’s disciplinary proceeding are former acting attorney general Jeffrey Rosen and his deputy Richard Donoghue. Both men have already testified at length in other forums about their interactions with Trump as he sought to remake the leadership of the Justice Department amid his desperate bid to remain in power.

Over the past three years, they have spoken to the House Oversight Committee, the Jan. 6 select committee and the Senate Judiciary Committee. Their testimony described their work to review — and ultimately debunk — Trump’s claims of election fraud, their efforts to prevent Trump from using the Justice Department in service of his bid to seize a second term he didn’t win and the Justice Department’s response to the Jan. 6 violence at the Capitol.

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Clark’s attorney Harry MacDougald revealed the existence of Blanche’s letter during a preliminary hearing Tuesday in Clark’s discipline proceeding. He said the assertions call into question whether key witnesses will be allowed to testify. Beyond Rosen and Donoghue, the letter itself suggests that Trump may challenge testimony that bar investigators intend to elicit from former White House deputy counsel Pat Philbin.

“We think that materially changes this case,” MacDougald said.

MacDougald said the issue implicates unresolved legal questions about whether a sitting president can override executive privilege assertions of a predecessor. While the Supreme Court ruled in Nixon-related proceedings that a former president has some residual executive privilege interests, no court has ever ruled on how to resolve a conflict between the incumbent and a predecessor — though courts have repeatedly indicated there would likely be a presumption in favor of the sitting president.

“The legal question of whether a sitting president can waive these privileges of a predecessor is a very serious and fundamental constitutional question,” MacDougald said.

MacDougald acknowledged that Trump’s attorneys issued the letter after Clark’s lawyers sought his position on the privilege issue.

“We have been asserting those privileges since the very beginning of this case and we have never failed to assert them,” he said.

Hamilton Fox, the lead disciplinary counsel in Clark’s case, urged the committee presiding over the proceedings to reject the gambit by Trump, saying it “is not a proper assertion of privilege.” He noted that Trump’s lawyers approved allowing Donoghue, Rosen or Clark to testify to congressional committees, although the waivers in those instances claimed Trump was preserving his right to object to their testimony in other contexts.

“The notion that some vague assertion now … is somehow overturning the waiver that the president’s lawyer gave a couple of years ago strikes me as preposterous,” Fox said. “But it’s certainly got to be done in more than the vague way that this letter is written.”

The disciplinary committee reviewing the charges intends to hear additional arguments on the matter in February and rule ahead of Clark’s March 26 trial.