Fulton County, Georgia, District Attorney Fani Willis has set a deadline of 12 p.m. Friday for all 19 defendants to surrender in Atlanta in her case regarding interference in the 2020 election. Most have complied, yielding the astonishing spectacle of national and state GOP notables turning themselves in for mug shots, culminating in Thursday’s surrender of the former president. A few defendants have not and are instead asking the federal court to interfere in the case. But of those opting for that legal long shot, no other stands out like former Justice Department lawyer Jeffrey Clark.
Clark has already lost his initial skirmish in federal court — and he is likely to lose the war. He first filed an emergency motion to stay the Fulton County prosecution and avoid being arrested by Willis’ Friday deadline. Clark complained that he did not have time to make travel arrangements to be booked and asked the federal court to halt the proceedings. Defendants are entitled to that kind of relief in civil cases but not in criminal ones. Clark contended that this plainly criminal prosecution was actually a “civil-criminal hybrid action,” an argument Willis said “misunderstands fundamental tenets of criminal law and procedure.”
Federal law requires Clark to prove that writing the letter was part of his official duties enforcing federal law.
On Wednesday, U.S. District Judge Steve Jones rejected Clark’s initial effort, along with a request on different (but similarly shaky) grounds for the same relief by one of Clark’s co-defendants, former White House chief of staff Mark Meadows. Clark turned himself in at the Fulton County jail early Friday morning.
But Judge’s initial ruling is merely a prologue to the main event for Clark: an evidentiary hearing on Sept. 18 regarding his underlying petition that his case be wrested out of the hands of the courts in Fulton County — where the alleged crimes occurred — and into Judge Jones’ federal courtroom. This, too, is likely to fail.
Willis’ indictment charges Clark with two crimes: first, the same overarching RICO conspiracy to overturn the election in Georgia that names the 18 other defendants, and second, an additional count of attempting to make false statements and writings. Both charges stem from a letter Clark drafted and circulated within the Justice Department, which was intended to be sent to Georgia officials asking them to consider appointing a false set of electors in light of fabricated “significant concerns” about the election.
The problem for Clark is that, to remove the case, federal law requires him to prove that writing the letter was part of his official duties enforcing federal law. But all the evidence points to Clark’s actions’ being far outside the scope of his official responsibilities — and instead being part of a political ploy orchestrated by Donald Trump to hang on to power and overturn the results of the 2020 presidential election.
Indeed, Clark was told as much by a chorus of his Justice Department bosses and White House lawyers. Acting Deputy Attorney General Richard Donoghue responded to Clark’s emailed draft letter by stating it “was not based on fact.” He later told Clark that what he was “proposing is nothing less than the United States Justice Department meddling in the outcome of a presidential election.” Clark responded: “I think a lot of people have meddled in this election” — essentially admitting what he was up to.
As a Justice Department official, Clark was strictly forbidden, both under the Hatch Act and as a matter of Justice Department policy, from engaging in such “meddling” in election results or otherwise engaging in partisan political activity while on duty. (Willis noted as much in her response to Meadows’ removal petition, as did one of the authors — Wertheimer — in an amicus brief supporting her and discussing Clark.)
No wonder Clark was also reprimanded by acting Attorney General Jeffrey Rosen, White House counsel Pat Cipollone and deputy White House counsel Patrick Philbin. Indeed, the mere topics of the letter were far beyond any of Clark’s normal day-to-day duties as the head of the Justice Department’s Environmental and Natural Resources Division, which had nothing to do with the counting of votes in an election in Georgia. He was also the acting head of the department’s Civil Division, but that division, too, has no authority over how Georgia counts its votes in an election. Elections and voting are dealt with in the Civil Rights Division — a completely different part of the Justice Department. And even that division’s lawyers have no federal legal authority to ask a state legislature to consider recognizing the loser of an election as the winner based on nonexistent irregularities. Not even close. No wonder Clark was also reprimanded by acting Attorney General Jeffrey Rosen, White House counsel Pat Cipollone and deputy White House counsel Patrick Philbin for violating Justice Department policy by contacting the president without prior approval to advance his bizarre notions. White House lawyer Eric Herschmann told Clark that sending the letter he had drafted “would be committing a felony.” In other words, Clark’s bosses and colleagues were telling him that he was acting outside the bounds of his job duties. Even if Clark were to somehow prove that his conduct was official (which he cannot), removal is a two-part test. Thus he would still have to overcome a second hurdle: showing that he also has a “colorable” (i.e., minimally plausible) defense to his conduct under federal law. Clark argues that he has one under the Supremacy Clause, which protects federal officials from state criminal prosecution when their conduct was authorized by federal law, and that they did nothing more than what was “necessary and proper” to effectuate their duty under that law. But as we have already explained, Clark’s letter was way outside the scope of his authority. And the courts have noted that actions are not proper if an officer acts out of “any personal interest, malice, actual criminal intent, or for any other reason than to do his duty.” Clark’s behavior — including his admission that he was meddling — checks those boxes. At any rate, the federal court is probably not going to reach the Supremacy Clause question. You get to the second part of the test only if you pass the first one, and Clark is likely to fail there. Clark’s overall argument on removal is of a similar caliber to the kind of legal reasoning that got him indicted in the first place. He will need to come up with far more persuasive positions for the jury if he hopes to avoid conviction in the trial that most likely lies ahead of him in Fulton County — and not in federal court.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Fred Wertheimer
Fred Wertheimer is president of Democracy 21, a nonpartisan, nonprofit organization that works to strengthen U.S. democracy and empower citizens in the political process.
Joshua Kolb
Joshua Kolb is counsel and manager of Rapid Legal Response at State Democracy Defenders Action. 
