Jan. 6 panel to take up contempt referral for former DOJ official Jeffrey Clark

The Democratic-led House select committee investigating the Jan. 6 riot at the U.S. Capitol will vote Wednesday evening on a criminal contempt referral for a former Justice Department official who had promised to pursue false election fraud claims.

The ex-official, Jeffrey Clark, appeared with his attorney before the panel in early November, but said he was immune from answering their questions because of various arguments of legal privilege.

After that meeting, committee Chair Bennie Thompson said he rejected Clark's claims.

"He has a very short time to reconsider and cooperate fully. We need the information that he is withholding and we are willing to take strong measures to hold him accountable to meet his obligation," Thompson, D-Miss., said at the time.

Clark refused to answer questions about former President Donald Trump and his efforts to get the Justice Department to investigate false 2020 election claims, according to a deposition transcript released Tuesday. The committee has also noted that Clark's former DOJ supervisors have appeared before the panel.

Clark and his attorney did not immediately respond to a request for comment.

Clark was a key figure in a recent Senate report detailing Trump's attempts to enlist the Justice Department in his efforts to overturn the 2020 presidential election.

The report said Clark proposed delivery of a letter to Georgia state lawmakers and others to push for a delay in certifying election results and recommended a press conference announcing the DOJ was investigating allegations of voter fraud, despite a lack of evidence.

If the criminal contempt referral is approved Wednesday evening, it would mark the second such case for the committee. The first was for former Trump strategist Steve Bannon. The House approved that in late October, and he was soon after indicted by the Justice Department. He's pleaded not guilty to contempt of Congress charges.

"We've been clear and consistent throughout: Willful defiance of the committee will have consequences," said California Democratic Rep. Pete Aguilar, a member of the panel. "We've shown that with Mr. Clark, we've shown that with Mr. Bannon, and we're not afraid to exercise it."

House Majority Leader Steny Hoyer, D-Md., said if the committee votes for a referral, the full chamber would take up the measure this week.

Why the committee is going this route with Clark

On Tuesday evening, the panel released more than a dozen exhibits in its contempt report for Clark, including the first publicly released transcript that shows his attorney rejecting responses on his client's behalf because of executive privilege.

Clark attorney Harry MacDougald repeatedly told the panel his client would assert executive privilege and other immunity with respect to his testimony and documents.

"We do not intend to answer any questions or produce any documents today," MacDougald told the panel at their Nov. 5 meeting.

MacDougald went on to say that Clark could also claim immunity through law enforcement and attorney-client privileges, as well as other legal shields.

"Mr. Clark finds himself in a position of having worked for a president who has asserted executive privilege, giving him a letter asserting executive privilege," MacDougald said. "And therefore, as his lawyer, I can't allow him to be exposed to the risk of guessing where that line is going to be drawn. And so, for now, we are standing on executive privilege."

Since he declined to answer the panel's questions, Clark faces challenges in his privilege claims, several legal analysts said.

Jonathan Shaub, a University of Kentucky law professor and a former attorney at the Justice Department's Office of Legal Counsel, noted the Justice Department already authorized Clark to testify before the Senate Judiciary Committee (Clark ultimately did not agree to be voluntarily interviewed in that case).

Clark was a member of the Justice Department on Jan. 6 and not the White House, where executive privilege claims can protect presidential advisers. It's also unclear if Trump directly told Clark not to cooperate with the Jan. 6 panel as he did with former White House Chief of Staff Mark Meadows and other advisers, Shaub said.

MacDougald claimed that Trump directed Clark not to cooperate in a letter, which was attached to a series of immunity claims shared with the panel. However, the committee disagreed, arguing Trump in fact greenlighted Clark's testimony in that same Aug. 2 letter — sent on Trump's behalf by attorney and former Georgia Republican Rep. Doug Collins.

MacDougald also confirmed he and his client were in receipt of a July letter from the Justice Department indicating that executive privilege does not apply to his immunity claims.

Norm Eisen, a former House impeachment lawyer, noted that by Clark at least declining to testify in person, he bought himself more time on a contempt referral than Bannon. But in the end, that could not be enough.

"Now, Clark to his credit showed up," Eisen said. "When you show up — unless you have a legally valid reason not to answer questions — you have to answer the questions. And he didn't."

Eisen noted that Clark was somewhat in a similar boat as Meadows.

The committee was weighing whether to pursue a criminal contempt referral against Meadows. But on Tuesday, Thompson, the committee chair, said Meadows was cooperating, producing records and set to appear for a deposition.

But Thompson also noted that Meadows' degree of compliance will be reassessed after his deposition.

Eisen argues that Meadows, like Clark, faces similar questions of whether he has immunity without a court order, or a preliminary injunction in place, that would halt such cooperation.

"It's a question of, can you take the law into your own hands? Can you grant yourself a preliminary injunction? Can you behave as if you have a court order saying, 'I don't need to answer those questions'?" Eisen said. "And ultimately, you cannot." [Copyright 2021 NPR]