Lawyer says ex-DOJ official acted within scope of duties

Scales of Justice with the word justice over it.

by Stanley Dunlap, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

September 19, 2023

On Monday, the attorney representing Jeffrey Clark, a former Trump Justice Department official, accused the Fulton County District Attorney’s Office of opening a Pandora’s Box by prosecuting Clark for disagreeing with DOJ colleagues over the secureness of the 2020 presidential election results.

Harry MacDougald, Clark’s attorney, challenged prosecutors charging him in state court for drafting a letter that disagreed with the Justice Department’s stance confirming the legitimacy of Democratic President-Elect Joe Biden’s victory over Trump. Fulton prosecutors allege that Clark spread false conspiracy theories about foreign influences rigging the election in order to pressure state leaders to intervene on Trump’s behalf.

At Monday’s U.S. District Court hearing in Atlanta, MacDougald said that Clark’s case could have major ramifications if what should be federally protected internal communications and confidential debates of government interest are punished by state prosecutors.

“It is not the function of state prosecutors to peer into confidential federal communication… pick a winner and loser and indict the loser,” he said.

On Aug. 14, a Fulton grand jury indicted Trump, several lawyers and former federal officials, and other Trump allies under Georgia’s RICO Act (Racketeer Influenced and Corrupt Organizations) on allegations of being involved in a multi-state election interference conspiracy.

Clark did not attend Monday’s U.S. District Court hearing that centered on legal arguments of immunity for executive federal officials. He says he was lawfully carrying out his duties when he asked DOJ supervisors to sign off on a letter claiming the department had legitimate concerns about massive voting fraud.

Former White House Chief of Staff Mark Meadows, one of Clark’s co-defendants, is appealing District Court Judge Steve Jones’ decision not to move Meadows’ case to federal court.

Fulton Assistant District Attorney Donald Wakeford said Clark overstepped his legal authority by attempting to interfere in state-level election certification.

“There is no evidence of the federal law Clark was trying to enforce,” Wakeford said. “These are matters of state courts and the states deciding how they count their electoral votes.”

MacDougald argued that Clark’s involvement in the 2020 election came at the invitation from Trump, who as president had the right to ask for legal advice from various DOJ attorneys and other advisors.

“President Trump asked Mr. Clark for his advice,” he said. In the end, the president decided against sending (Clark’s) letter and that was the end of the matter.

Clark sparred with other Trump administration officials during a meeting held in the Oval Office on Jan. 3, 2020.

Trump reportedly considered appointing Clark to lead the DOJ as part of a plan to pressure Vice President Mike Pence ahead of Biden’s confirmation by Congress on Jan. 6, 2021, but declined to put Clark in charge. The department’s other attorneys threatened a mass resignation if Clark were given control of the DOJ.

Jones on Monday questioned how Trump would’ve known to seek advice about election security from someone in charge of the Justice Department’s environment and natural resource division.

“You’re telling me that Mr. Clark would have not ever been involved until Mr. Trump contacted him,” Jones asked the defense attorney.

A former 20-year DOJ official, Jody Hunt, testified Monday that only its civil rights or criminal divisions would be involved with enforcing election related laws such as election irregularities or voter discrimination.

In his tenure at the DOJ from 1999 to July 2020, Hunt stated that only the attorney general had the power to assign a lower level employee to work on a matter outside of their division.

Hunt also described an attorney general memo instructing that any communications with White House officials must be authorized by the attorney general. The chain of command helps avoid unwarranted influence, Hunt said

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: Follow Georgia Recorder on Facebook and Twitter.