A disgraced Trump loyalist is in trouble for blowing off January 6 investigators. But Biden’s DOJ still faces a tough call on prosecuting him.

Jeff Clark, Assistant Attorney General for the Environment and Natural Resources Division, speaks during a news conference at the Justice Department in Washington, September 14, 2020.
Jeffrey Clark. a former top Trump DOJ official, is defying congressional investigations into the January 6 riot at the Capitol. SUSAN WALSH/POOL/AFP via Getty Images
  • The House is on track to refer a second Trump ally to DOJ for a contempt-of-Congress prosecution.
  • But the Justice Department is expected to have a more difficult decision in charging Jeffrey Clark.
  • Clark refused to answer lawmakers’ questions about Trump’s effort to overturn the 2020 election.

After going decades without prosecuting anyone for blowing off Congressional investigators, the Justice Department ended its drought by charging Steve Bannon with defying the House committee digging into the January 6 attack on the Capitol.

Now, another criminal case looks to be heading their way that presents Attorney General Merrick Garland’s Justice Department with a much more difficult decision than the one many legal experts described as a slam-dunk against Bannon.

The next potential culprit is Jeffrey Clark, a senior DOJ appointee from the Trump era who advocated for throwing the full weight of the Justice Department behind the lame duck Republican president’s baseless claims of election fraud following the 2020 general election.

On Wednesday night, the House committee investigating January 6 voted to hold Clark in contempt of Congress. But there was also a wrinkle: Clark’s lawyer said his client would be willing to appear for a deposition where he’d assert his 5th Amendment rights to avoid self-incrimination.

Clark’s 11th hour move has, for now, forestalled a full House vote that would result in his referral to the US attorney’s office in Washington. He’s scheduled to appear on Saturday for a deposition, and the House January 6 panel’s Democratic chairman said he’d use that meeting as an opportunity to assess next steps.

“This is, in my view, a last-ditch attempt to delay the Select Committee’s proceedings. However, a Fifth Amendment privilege assertion is a weighty one,” said Rep. Bennie Thompson of Mississippi. “Even though Mr. Clark previously had the opportunity to make these claims on the record, the Select Committee will provide him another chance to do so.”

It’s up to DOJ

Even if the House ultimately refers Clark to DOJ, it would be up to federal prosecutors to decide whether he should face charges from the Justice Department where he worked in the Trump and George W. Bush administrations. Legal experts told Insider that, even without a question over the 5th Amendment, the decision of whether to prosecute Clark would be anything but simple for the Justice Department.

In Bannon’s case, the Justice Department weighed a referral from the House that targeted a Trump ally who by January 6 was years removed from his role in the administration. Bannon’s position outside government during the period in question also has made his claims of executive privilege laughable in the eyes of legal experts familiar with the nuances of his case.

Even if he had a claim of executive privilege, legal experts said, Bannon disregarded the House panel’s subpoena for his testimony, depriving lawmakers of a chance to pose their individual questions so he could invoke the privilege. 

Clark has a stronger argument on the privilege front because he served at the Justice Department at the end of the Trump administration. He also made at least a cursory appearance before the House committee in early November to deliver a letter from his lawyer advising lawmakers that he would not answer any of their substantive questions. 

“Bannon’s defense is relatively frivolous. The Clark case would be significantly tougher. He was actually inside of the government, which makes the executive privilege claim more challenging. Second, he’s a lawyer, which is going to raise difficult attorney-client questions that would further gum up any prosecution,” said a former top official in the US attorney’s office in Washington, which is handling the Bannon prosecution.

Bennie thompson
Rep. Bennie Thompson leads the House committee investigating the January 6 attack on the Capitol. Jonathan Ernst/Reuters

Jeffrey Clark ‘knows better’

Still, there are a number of factors working against Clark.

For one, there’s the letter Trump sent saying he would not try to prevent him from testifying. The Justice Department itself cleared Clark and other former Justice Department leaders to testify. And the Biden administration also has made a decision to broadly waive executive privilege for the purposes of the January 6 investigation and provide lawmakers access to presidential records from the Trump era.

“In some ways, it’s easier to hold Clark accountable because he knows better. He knows how it works,” said Jonathan Shaub, a University of Kentucky law professor who previously worked in the Justice Department’s Office of Legal Counsel. “And if the Justice Department has authorized him to testify, he doesn’t have any basis for not testifying.”

“Of course, he’s going to rely on the ambiguities of executive privilege and former President Trump, but he’s sort of bootstrapping himself onto these claims Trump is making for others, because Trump doesn’t seem to be making them for him,” Shaub added. “He’s kind of cut him loose.”

Jeff Rosen DOJ
Former acting Attorney General Jeff Rosen has already testified about Trump’s efforts to pressure DOJ. Yuri Gripas-Pool/Getty Images

Rosen and Donoghue already testified

Further undercutting Clark’s privilege defense is the cooperation of two other Trump-appointed Justice Department leaders: former acting Attorney General Jeff Rosen and his one-time deputy, Richard Donoghue. 

Both men have already testified extensively before both the House panel investigating January 6 and a separate Senate Judiciary Committee probe into the violent and deadly transition period between the Trump and Biden presidencies. 

In closed-door interviews, both men detailed how they and other Justice Department leaders pushed back against Clark’s effort to contest the 2020 election results in multiple states. Clark at one point agreed to replace Rosen as acting attorney general, but Trump backed down from elevating him after other Justice Department leaders threatened to resign in protest.

In the course of the House committee’s investigation, Clark has separated himself from his former Justice Department superiors by avoiding lawmakers questions entirely. And now he’s in a precarious legal position where a referral for criminal prosecution signals lawmakers no longer are willing to hold out for testimony that was expected to largely track with Rosen and Donoghue.

“If anybody should know better, it’s this guy,” said Rizwan Qureshi, a partner at the law firm Reed Smith and former prosecutor in the US attorney’s office in Washington. “He’s a lawyer. He understands the importance of appearing and responding to a subpoena.”