Jeff Clark Loses Bid To Block Key Trump Officials From Testifying In Disciplinary Trial

A committee set to consider professional misconduct charges against former Justice Department official Jeff Clark — stemming from his role in Donald Trump’s bid to subvert the 2020 election — will allow top former White House and DOJ officials to testify in the proceeding, rejecting Clark’s bid to block them altogether.

The ruling by Merril Hirsh, the chair of the three-member committee of D.C. Bar, clears the way for the testimony of high-level Trump administration figures, including former acting Attorney General Jeffrey Rosen, his deputy Richard Donoghue and former White House deputy counsel Patrick Philbin.

Clark had sought to block the testimony of the three men, as well as his own former aide Ken Klukowski, by claiming their testimony was barred by executive privilege — which permits the sitting president to shield confidential communications — as well as several privileges held by the Justice Department.

But Hirsh rejected each of those claims, noting that Trump had permitted all of the former officials to testify to congressional investigators probing the effort to overturn the 2020 results, waiving any claim of confidentiality that might have existed. In addition, the Justice Department has waived any current claims of privilege that it might be permitted to assert over the four witness’ testimony.

The ruling by Hirsh keeps on track a March trial that could result in the suspension or revocation of Clark’s license to practice law in Washington, D.C., where he once ran the Justice Department’s Civil Division and Environmental and Natural Resources Division.

Disciplinary investigators in Washington charged Clark in 2022 with violating his professional ethics by drafting and seeking to deliver a letter to Georgia lawmakers in the closing days of the Trump presidency. That letter encouraged the lawmakers — in a state narrowly won by Joe Biden — to convene a special session and consider appointing alternate electors. Investigators say Clark premised the letter on a false assertion that DOJ had found substantial evidence of fraud.

Hirsh acknowledged that Clark’s effort to prevent the witnesses’ testimony was based on a recent letter from Trump’s current attorney, Todd Blanche, urging Clark to uphold Trump’s executive privilege. But Hirsh also noted that Blanche’s Jan. 12 letter merely instructed Clark to uphold Trump’s privilege and did not purport to prevent the other witnesses from testifying.

“As [Clark] has represented through counsel that he will decline to testify, and instead invoke his right under the Fifth Amendment, Mr. Blanche’s instruction that Mr. Clark honor the alleged privileges seems to be of no practical effect,” Hirsh wrote.

Hirsh agreed with Clark on one point: that the waiver of executive privilege applies only to information that Rosen, Donoghue, Philbin and Klukowski made public in other proceedings, like in reports and hearings held by the Jan. 6 select committee. But he added that Clark is in no position to assert privilege over the new information himself. Rather, only “a party with standing to do so” — such as Trump or his attorneys — would be able to. And even then, Hirsh added, the claim could be overcome by other competing needs.

Trump has shown particular interest in Clark’s proceedings in a way he did not when his former attorney, John Eastman, testified at length in his own disbarment proceedings in California. Trump’s lawyers made no appearances there and did not seek to assert any privileges over Eastman’s testimony. (A decision in the Eastman case is expected by Thursday.)

However, Trump’s posture seems different with Clark, who is criminally charged alongside Trump in Georgia as part of an alleged racketeering conspiracy aimed at corrupting the state’s 2020 election results. In addition to sending a letter last month, Blanche was present Friday to monitor a hearing before the D.C. Court of Appeals where Clark was seeking to prevent bar investigators from forcing him to hand over documents he claimed were protected by his Fifth Amendment rights.

The three-judge panel of the D.C. court ultimately sided with Clark.