Lawyers for former Justice Department official Jeffrey Clark, a co-defendant in the Georgia election interference case, argued Monday that the case against him should be moved to federal court because he was acting in his official capacity when he urged DOJ brass to intervene in the 2020 election.
Prosecutors from Fulton County District Attorney Fani Willis's office countered in the hearing before U.S. District Judge Steve C. Jones that the case should remain in state court because elections weren't within Clark's purview and he exceeded his authority.
They called one of Clark's predecessors as head of DOJ's civil division, Jody Hunt, as a witness. Hunt testified the job had nothing to do with election fraud investigations, which were the responsibility of the civil rights division.
The DA's office alleges Clark was urging the then-acting U.S. Attorney General Jeffrey Rosen to send an official DOJ letter to Georgia's governor and legislative leaders saying the department had "identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia."
Rosen refused to do so despite pressure from then-President Donald Trump — who had threatened to fire and replace him with Clark — because the DOJ had found no evidence of significant fraud.
Clark's attorney, Harry MacDougald, told the judge the letter was merely "a proposal."
"You may think everything they said in that letter was wrong, but he’s entitled to have his own opinions about the law," MacDougald said.
The judge said he'd rule on the matter at a later date, but did not give a timeframe.
Clark did not attend the hearing. He's pleaded not guilty to racketeering charges brought by the DA's office.
He and Trump are among the 19 defendants in the sprawling case brought by Willis's office alleging they participated in conspiracies designed to unlawfully subvert Joe Biden’s 2020 election victory in Georgia and name Trump the winner.
Clark is seeking to have the case moved to federal court because it would enable him to put forward additional defenses.
The judge who presided over the hearing is the same judge who denied a similar request from Clark's co-defendant, former Trump White House chief of staff Mark Meadow. Meadows is appealing that decision.
Clark worked during the Trump administration as assistant attorney general in the environment and natural resources division. In the final few months of Trump’s time in office, Clark also served as acting assistant attorney general in the civil division.
He was charged with violating Georgia's Racketeer Influenced and Corrupt Organizations Act and with a criminal attempt to commit false statements and writings. Trump, who faces racketeering and other charges in the case, also has pleaded not guilty.
The five-page letter Clark drafted was never sent, but was the subject of a contentious Jan. 2021 meeting with Trump, Rosen, Clark and others, his lawyers noted.
All the other participants "argued against the letter,” the lawyers wrote. “The President was initially in favor of sending the letter and having Mr. Clark take the helm of the Justice Department. After several hours, however, the President decided not to send the letter and left Justice Department leadership as it was on January 2, 2021. That was the end of the matter. It was a privileged discussion that never should have become public and it was not leaked by Mr. Clark to the press or Congress.”
They said “The significant point about this meeting for removal purposes is that the President discussed the letter and election topics directly with Mr. Clark, and directly sought his opinions and advice, along with that of all others present. The President has the unqualified and illimitable right to seek and obtain such advice from his senior legal advisors,” they wrote. “This act by the President conclusively ratified that Mr. Clark’s responsibilities included the election-related issues discussed in the draft letter, and that all of his charged conduct was under color of law.”
They also maintained it was the state that's exceeding its authority, not Clark.
“The State assumes that it is for the State to determine the scope of the responsibilities of an Assistant Attorney General of the United States. It is not. Constitutionally, that is none of the State’s business,” they wrote.
Clark’s lawyers also said their client has immunity under the supremacy clause, which “therefore bars enforcement of any state’s criminal law against Mr. Clark based on the content of his confidential internal deliberations at the Department of Justice or with the President,” they wrote.
The DA's office told the judge that Clark had been told he was exceeding authority by Rosen and others at DOJ, and he pressed ahead with his false claims anyway.
