FILE – Fulton County District Attorney Fani Willis speaks at the Fulton County Government Center during a news conference Monday, Aug. 14, 2023, in Atlanta. Donald Trump and several allies have been indicted in Georgia over their efforts to overturn his 2020 election loss in the state. (AP Photo/John Bazemore, File)
By KATE BRUMBACK (Associated Press)
ATLANTA (AP) — Former Justice Department official Jeffrey Clark acted within the scope of his official duties when he wrote a letter expressing concern about alleged problems with the 2020 election in Georgia, his lawyer said Monday when he attempted to bring charges against Clark in federal court.
Clark is accused along with former President Donald Trump and 17 others of participating in a wide-ranging plot to overturn Democrat Joe Biden’s victory in the presidential election and keep Republican Trump in power. All 19 defendants pleaded not guilty.
U.S. District Judge Steve Jones presided over the hearing in Clark’s attempt to move his case from Fulton County Superior Court to federal court. Jones rejected a similar attempt by Trump’s White House chief of staff Mark Meadows earlier this month. Unlike Meadows, who testified at his own hearing last month, Clark was not in court, as his attorney argued on his behalf.
Clark’s lawyers submitted a statement to the court last week outlining his service at the Justice Department. Jones said Monday he would not consider that statement after prosecutors expressed concerns about not being able to question Clark about one of his allegations.
The indictment says Clark wrote a letter after the November 2020 election saying the Justice Department had “identified significant concerns that may have affected the election results in several states, including the state of Georgia,” and asked senior department officials to sign it and send it to Georgia Gov. Brian Kemp and state lawmakers.
Top department officials told Clark that the central claim in his letter was false, that he had no authority to make the claim and that it was outside the department’s role, prosecutors argued.
Harry MacDougald, an attorney for Clark, described the situation as a disagreement among attorneys. It is not within a prosecutor’s authority to look into confidential deliberations at the Justice Department or the White House and “pick a winner and a loser and indict the loser,” he told the judge.
Jones asked MacDougald whether anyone who held the two roles Clark held at the time – deputy attorney general overseeing the Environment and Natural Resources Division and acting assistant attorney general for the Civil Division – had the authority to address the president directly , without going through his department superiors.
“If contacted by the president, yes,” MacDougald replied.
MacDougald referred to a 2021 White House meeting in which Trump inquired about the letter Clark had written but was ultimately persuaded by others not to send it to officials in Georgia, saying: “The theory Our case is that the President confirmed this behavior at the meeting on January 3rd.”
MacDougald rejected the idea that federal agencies had no role in state elections, noting that the Justice Department was already investigating allegations of voter fraud before Clark got involved.
“The Rubicon had already been crossed,” MacDougald said.
Prosecutors had subpoenaed Jody Hunt, who served as head of the Justice Department’s civil division before Clark. Under questioning by prosecutor Anna Cross, Hunt testified that the Civil Division had no role in investigating election interference or voter fraud, but that it was the responsibility of the Civil Rights Division or the Criminal Division.
He also described a department memo that says communications between the agency and the White House must go through the attorney general, deputy attorney general or deputy attorney general. This is to avoid asking people to do things that are outside of their responsibility and to avoid contradictory requests, he said.
Another prosecutor, Donald Wakeford, argued that Clark presented no evidence that his actions were authorized by Trump or that Trump even had the authority to comment on these matters. Clark also made no statement about what federal law he sought to enforce or what authority or relevant expertise he had to investigate allegations of problems with the election, Wakeford said.
“This case does not involve any federal agency,” Wakeford said, arguing for the case to be sent back to state court. “There is no federal agency to protect this.”
Clark is one of five defendants seeking to take his case to federal court, and Trump has signaled he may join them. Although the verdict against Meadows could represent an uphill battle for Clark and the others, Jones made it clear that he would evaluate each case individually. The judge’s refusal to accept Clark’s affidavit could be an indication to others that they should expect to show up and testify.
Meadows, who is appealing Jones’ sentence, took the stand last month and testified for nearly four hours, answering questions from his own attorney, a prosecutor and the judge. He spoke about his duties as Trump’s final chief of staff and sometimes struggled to remember the details of the two months after the November 2020 election.
Jones said he would try to govern quickly. His decision in the Meadows case came a week and a half after the hearing.
The practical impact of a move to federal court would be a jury pool that covers a larger area than just overwhelmingly Democratic Fulton County and a trial that would not be photographed or televised because cameras are not allowed in federal courtrooms. But it would not open the door for Trump, if he is re-elected in 2024, or for any other president to issue pardons, since conviction would still occur under state law.
Clark was identified as one of six unnamed co-conspirators in an indictment filed by special counsel Jack Smith accusing Trump of trying to illegally overturn the results of the 2020 election and block the peaceful transfer of power to Biden. He has not been charged in this case.
In the summer of 2022, federal agents searched Clark’s Virginia home, and video emerged of him standing in his driveway handcuffed and without pants.
