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opinion | Distinguished Persons of the Week: Responsibility for Lawyers Who Betrayed Democracy

One of the most troubling aspects of the lawless Trump era has been the behavior of so many lawyers who brushed aside their professional obligations and filed frivolous lawsuits on behalf of a defeated president. Some took an active part in the coup attempt.

To date, only a few counter proceedings have been initiated to evaluate possible misconduct and suspend possible miscreants. One of them, the DC Bar, this week took up enforcement of ethical standards and held a hearing pending more extensive fact-finding and briefing regarding the conduct of former Justice Department official Jeffrey Clark.

Clark, as you may recall, tried to work his way into the position of acting attorney general and encouraged Trump’s idea that the election could be reversed. Clark drafted a letter trying to persuade states to invalidate their voters’ choices by establishing alternative electoral rolls.

The draft began with this blatant lie: “The Justice Department is investigating several irregularities in the 2020 election for the President of the United States. The Department will keep you updated on the progress of the investigation, but at this time we have identified significant concerns that may have affected election results in multiple states, including the state of Georgia.” That’s false. There were never any major concerns about the validity of the census. He continued, “Undoubtedly, many of Georgia’s state legislators are aware of irregularities, sworn in by various witnesses, and we have taken note of their complaints.” There were no such irregularities.

This letter, which he presumably intended to send to a series of states, would have messed up those electoral votes. Fortunately, his superiors refused to go along with the stunt. But Clark continued to plead with President Donald Trump to replace the acting attorney general and allow him to send the letters. The only reason Trump didn’t do this is because justice officials warned him that doing so would have led to mass resignations.

Now Clark is being held accountable for his behavior. Ethics guru Norman Eisen, who served as a co-counselor to the House Judiciary Committee during Trump’s first impeachment, helped draft a letter of complaint that may have accelerated the investigation to the bar. Simply put, Eisen tells me, “legal ethics rules don’t consider coup attempt an allowed activity” for lawyers.

The Bar may determine that Clark has violated ethics rules that prohibit “conduct involving dishonesty, fraud, deception or misrepresentation” and engaged in conduct that “seriously disrupts the administration of justice” (i.e., electoral vote counting and peaceful transfer of power).

Eisen’s letter of complaint makes a strong argument:

Clark’s proposed letter was an official request from the United States Department of Justice to the Georgia legislature to convene itself and replace its own presidential electorate with those elected by Georgians. It was based on made-up and fictitious concerns. Worse, Mr. Clark suggested to Messrs. Rosen and Donoghue that the Department of Justice send a similar letter to other unnamed states without any evidence, to the extent on the public record, that the certifications arising from similar administrative processes in those states were unreliable.

It is difficult to imagine a greater, more disruptive, or more consistent interference in the administration of justice than what Mr. Clark proposed. By simply stating that his proposal is intended to help understand the disruptive chaos such a letter would cause, because it either damaged the public’s trust in carefully researched, tested and certified election results, or the trust in the fairness and impartiality of the Ministry of Justice itself faltered. . . . Mr. Clark attempted in an unprecedented way “conduct that seriously impedes the administration of justice.”

Clark has denied wrongdoing and has argued that the bar has no jurisdiction over state attorneys.

Reuters reported: “Hamilton ‘Phil’ Fox, the head of the DC bar’s Office of Disciplinary Counsel, announced his plans to call former Acting Attorney General Jeff Rosen and former Acting Deputy Attorney General Rich Donoghue as witnesses. at a DC bar ethics committee hearing Thursday.” Given their damning testimony before the House on January 6, 2021, select committee, in which they explained that Clark had no basis on which to pursue his plan, this probably won’t go well for Clark.

During Thursday’s hearing before a panel of three attorneys, Clark’s counsel advanced the idea that it is not illegal to make a stupid suggestion. Fox agreed, but there’s a lot more to it. Not only has the federal court found a likely reason to search Clark’s phone, but another federal judge, David O. Carter, has already indicated that it is likely that Trump and his allies, including Trump attorney John Eastman, will guilty of illegal conduct. If Eastman’s behavior in devising the bogus voter plot and attempt to steal the presidency is likely to violate federal law, Carter said, Clark may have a hard time explaining that his aspect of the plan is a perfectly legal suggestion. used to be.

Clark has not been charged and his disciplinary proceedings against the bar have only just begun. Nevertheless, his case should serve as a flashing red light for other lawyers: If you participate in an attempt to undermine an election, knowing there is no evidence of fraud, or misrepresenting facts to federal investigators, you are putting yourself in the loop. legal jeopardy – and possibly the risk of losing your law license.

For trying to uphold the standards of the legal profession and maintain the barriers of democracy, we can say to the DC Bar, the lawyers who filed a letter of complaint and Mr Fox, well done.

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