voice for democracy

A Senate Report Shows How Close American Democracy Came to Disaster – Lawfare

Almost a year after the 2020 election, and nine months after the attempted insurrection on Jan. 6, new information continues to emerge about former President Trump’s scheme to disrupt the democratic transition of power and illegitimately hold on to his office after electoral defeat. At this point, it’s easy to become inured to these stories; each new one may just seem like more press coverage of Trump raging ineffectively. After all, he failed to carry out his power grab, and President Biden is securely in office. 
But the Senate Judiciary Committee’s new staff report released last week is a terrifying document.  It describes in fresh detail Trump’s efforts to bully the Justice Department into overturning the election. And it shows just how aggressively Trump tried to hold on to power, how much help he had from some within the Justice Department, and how hard departmental leadership had to work in order to, just barely, hold the president back. The report closes with recommendations to respond to the crisis and avoid future abuses. But the bigger problem that allowed Trump’s delusion to flourish and come far too close to success—a lack of good faith and commitment to democracy within the White House and some quarters of the Justice Department—will be harder to solve.
The committee styles the report as an “interim” release midway through its ongoing investigation into “Trump’s reported efforts to enlist” the Justice Department in his plan to subvert the results of the 2020 election. By its own telling, the committee began investigating shortly after reporting surfaced in January that Trump had pushed to ask the Supreme Court to overturn the vote and replace the acting attorney general with an official enthusiastically encouraging Trump’s scheme. (The work undertaken here by the Senate Judiciary Committee is separate from the House select committee on the Jan. 6 attack; while the House consolidated various investigations into the select committee, a range of Senate committees have continued their own probes.) According to the report, the Senate Judiciary Committee is still investigating the various misdeeds—but it chose to release a report in the meantime “given the gravity of the misconduct the Committee has uncovered to date … and in the interest of making a public record of Trump’s efforts to compromise DOJ’s independence.”
The report’s six key findings center around a scheme by Jeffrey Clark, then head of the Justice Department’s Civil Division, to have the department send a letter to state legislatures suggesting they convene a special session and appoint new electors due to election irregularities. Clark’s prominence in the election subversion story was hardly predictable—he had held his position in the Civil Division only since September 2020; before that, he had been leading the Environment and Natural Resources Division. But in December 2020, weeks before the certification of the Electoral College vote, Trump asked Acting Attorney General Jeffrey Rosen if he knew “some guy named Jeff Clark.” 
In the ensuing days, Clark told Rosen and Acting Deputy Attorney General Richard Donoghue he had met with the president personally. Clark also requested an intelligence briefing about supposed election fraud and proposed that the Justice Department reach out to swing-state officials with a “Proof of Concept” document suggesting that state legislatures should “assemble and make a decision about elector appointment”—in other words, that lawmakers should convene to appoint electors who would vote for Trump rather than Biden.
Donoghue and Rosen immediately rejected the proposal. But Clark’s efforts didn’t stop there. On Jan. 3, Clark told Rosen that President Trump was planning on installing him as the acting attorney general and implied that Clark would decline to replace Rosen if the acting attorney general sent Clark’s letter to state legislatures. The situation came to a boil at a lengthy White House meeting with Trump that evening: Clark advocated for sending his proposed letter to state legislators and for the installment of himself as acting attorney general, while Donoghue explained that Justice Department leadership would resign en masse if Trump chose to appoint Clark. In Donoghue’s telling, White House Counsel Pat Cipollone referred to Clark’s proposal as a “murder-suicide pact.” Trump decided not to send the letter and not to install Clark. In the same meeting, Trump expressed his desire to have Donoghue fire the U.S. Attorney for the Northern District of Georgia, Byung J. (Bjay) Pak, for not investigating alleged fraud, though Pak soon resigned instead. The overall picture is of a Justice Department upended by Trump’s overwhelming desire to hold on to power and Clark’s eagerness to help him, facts be damned.
As Clark had been pushing to send the “Proof of Concept” letter to Georgia, Rosen had also been bombarded by requests from White House Chief of Staff Mark Meadows to investigate various unfounded claims of voter fraud. He was contacted several times by a private attorney, Kurt Olsen, who claimed to be in contact with the president and asked Rosen to file a complaint with the Supreme Court. Trump also asked Rosen to pursue the Supreme Court route but eventually accepted that doing so was not feasible.
All this gives the lie to attempts by Vice President Pence, among many others, to downplay the attempted insurrection as just “one day in January.” Instead, as the report shows, Jan. 6 was the culmination of a months-long effort by Trump and his allies to undermine faith in the results of the election and upend the result. 
Since January, the Republican Party writ large has not disavowed this attempt to throw American democracy into crisis, instead either quietly tolerating it or embracing it outright. (Notably, the Republican minority staff on the Senate Judiciary Committee, along with Ranking Member Sen. Chuck Grassley, released their own report arguing that “President Trump’s actions were consistent with his responsibilities as President to faithfully execute the law and oversee the Executive Branch.”)  So far in 2021, 11 states have passed laws that limit the power of election officials and open the door for partisan interference in elections. Election law scholar Rick Hasen has described a variety of mechanisms by which unscrupulous politicians and activists could attempt to upend future elections, from officials manipulating vote tallies to attempts—along the lines of what Clark proposed to Trump—to organizing “a respectable bloodless coup dependent upon technical legal arguments overcoming valid election result.” 
So the risk that a future president and Justice Department might attempt Trump and Clark’s gambit is, unfortunately, far from hypothetical. The Judiciary Committee report offers several procedural and statutory suggestions for addressing what investigators have uncovered regarding how “bad-faith actors can exploit DOJ policy and norms to provide a platform for election fraud claims even when the claims are not backed by any credible evidence and insert DOJ unnecessarily in political controversies.” These proposals are useful—but, in the end, insufficient.
The committee proposes strengthening and systematizing the Justice Department’s policies and norms against conduct that might influence elections, in order to prevent high-profile actions that could undermine public confidence in elections—such as then-Attorney General William Barr’s November 2020 memo instructing prosecutors that they could conduct preliminary inquiries into election-related matters before the election was certified, which caused the director of the Public Integrity Section’s Election Crimes Branch to resign and which the Judiciary Committee report excoriates. 
Much of the report describes repeated violations of the Justice Department’s internal policy forbidding certain contacts with the White House, in order to minimize the risk of political interference in law enforcement—and so the committee recommends a “a stricter oversight regime” of White House-Justice Department contacts, including statutory requirements for the regular release of logs of such communications to the Justice Department inspector general, who could transmit matters of “urgent concern” to the House and Senate Judiciary committees. Likewise, it recommends that the inspector general’s purview be expanded to include misconduct by Justice Department attorneys. There is currently already legislation in Congress that would address some of these issues, including the Protecting Our Democracy Act.
The report also suggests that Congress should consider amending various statutes on obstruction of justice to clarify that Trump’s efforts to bully states into changing their vote counts would be legally prohibited. For example, 18 U.S.C. § 1512, prohibiting corruptly “obstruct[ing], influenc[ing], or imped[ing] any official proceeding,” and 18 U.S.C. § 1505—which prohibits “corruptly, or by threats or force, … obstruct[ing] or imped[ing] or endeavor[ing] to influence, obstruct, or impede” the work of “any department or agency of the United States” or Congress or any of its committees—could be amended to apply to “state proceedings relating to federal elections.” These proposals echo the conversations that took place after the release of the Mueller report regarding the need to amend obstruction statutes to clarify that they apply to the president.
There’s much to be said for these recommendations as a response to the committee’s findings. And the committee also suggests that the House select committee on the Jan. 6 attack follow up on the information provided in the report and notes, perhaps ominously, that “[b]ecause the Committee’s investigation is not yet complete and more documents and interviews are still being pursued, we have not made findings or recommendations concerning possible criminal liability.” 
But even so, when measured up against the sheer scale of the problem, these proposals seem distinctly small-bore. The president is, after all, the chief law enforcement officer of the United States, with broad constitutional prerogatives to direct the nation’s law enforcement activity. If a determined chief executive really wants to get in touch with Justice Department officials in order to strong-arm them into overturning an election, a speedier process for Congress to find out about that attempt—and even the threat of criminal sanctions—might not have much of an effect.
Unfortunately, there is no way to prevent the elevation of unscrupulous leaders other than refusing to elect them. When it comes to Justice Department lawyers, though, the country has more options. In particular, the Senate Judiciary Committee’s third suggestion—professional discipline of Jeffrey Clark—might help point the way. 
The committee recommends further investigation of Clark’s behavior by the D.C. Bar, and writes that it has submitted a complaint to that effect—not the first bar complaint to be filed against Clark. Here, the report points to rule 8.4 of the D.C. Rules of Professional Conduct, which prohibits “conduct involving dishonesty, fraud, deceit, or misrepresentation,” “conduct that seriously interferes with the administration of justice” and “stat[ing] or imply[ing] an ability to influence improperly a government agency or official.” It also suggests that Clark may have violated Rule 1.2(e), which provides that a “lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” As the report notes regarding Clark:
Clark should not be able to avoid discipline by asserting he subjectively assessed his claims to be factual or reasonable. Knowledge is ascertained by an objective standard, and the disciplinary authority may prove that Clark “knowingly” pushed DOJ to act on baseless grounds through circumstantial evidence, which, as demonstrated by this report, overwhelmingly shows Clark knew and should have known his claims were baseless.
The committee also points out that this would not be the first instance of using professional sanctions to discipline lawyers involved in election subversion: the law license of Rudy Giuliani, Trump’s personal lawyer, has been suspended, and the attorneys behind the “Kraken” litigation to overturn Michigan’s votes are now facing court sanctions and perhaps additional professional discipline.
But the fact that the Judiciary Committee has filed a complaint with the D.C. Bar disciplinary committee does not mean that anything will necessarily come of it. The disciplinary committee has a history of declining to take a stand when it comes to prominent public officials. The most recent example is its refusal to even initiate an ethics investigation in response to a complaint against Barr, stating—somewhat astonishingly—that “in general, this Office will not intervene in matters that are currently and publicly being discussed in the national political arena.”  
It has not always avoided wading into politics, as in the cases of Paul Manafort and Scooter Libby, but those cases involved mandatory disbarment as a result of criminal convictions (and notably, the committee did not oppose Libby’s request to be reinstated at the end of the mandatory period). Likewise, Giuliani’s suspension in D.C. resulted from the decision of a D.C. court, which was based not on a recommendation from the D.C. Bar disciplinary committee but, rather, on a New York court’s decision to suspend Giuliani pending a disciplinary committee investigation in that state. 
Nevertheless, Clark’s conduct falls squarely in the D.C. Bar disciplinary committee’s ambit. And unlike the complaint against Barr, which the committee dismissed as lacking “personal knowledge of the facts or allegations,” this referral comes from a congressional committee and attaches hundreds of pages of interview transcripts and primary source documents. It differs in other potentially important respects as well, at least from a practical perspective: Clark is no longer in public office, and he was not the nation’s highest law enforcement officer. In any event, the D.C. Bar should bear in mind the American Bar Association’s (ABA’s) admonition, in Rule 8.4(c), Comment 7, that “[l]awyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.”
That lawyers should not give their clients advice they know is wrong should be obvious. Perhaps Clark could argue that he really believed there was sufficiently credible evidence of voter fraud that it would be appropriate for the Department of Justice to encourage state legislatures to certify alternate slates of electors. But that’s hard to swallow given the fact that Clark eventually received an intelligence briefing that debunked his theories about election fraud and yet continued to press on with allegations about irregularities in Georgia. When Rosen then instructed Clark to call Bjay Pak, who had already looked into the bogus allegations, Clark refused and instead began interviewing his own witnesses. At almost every turn, Clark’s theories were debunked by his colleagues, but he refused to believe them.
Nevertheless, this question—what to do with claims of subjective good faith that are objectively unreasonable—is worth taking seriously. The answer is that subjective good faith isn’t good (enough) faith if it stems from partisan delusion. The human capacity for self-deception is boundless, and citizens rightly expect that people in positions of power care more about the truth than their own, or their party’s, interest.
A defense for Clark based on his subjective good faith has the same problem as Trump’s defense in his first impeachment trial. Trump’s defense team argued that because he believed that his reelection was in the public’s interest, his behavior—pressuring the Ukrainian president to investigate his political opponent—was by definition taken in good faith and thus unimpeachable. Yet far from showing that Trump acted in good faith, this argument proves the opposite: Trump had so deluded himself into thinking that his interests were indistinguishable from those of the nation that he was incapable of acting with the sort of good faith that the defense of the Constitution requires.
The same could be said of Clark—and, for that matter, of John Eastman, the conservative lawyer advising Trump after the election who drafted a memo sketching out how Vice President Pence could upend the certification of the electoral vote on Jan. 6 to keep Trump in power. Eastman and Clark appear to have begun from the conclusion that the only way that the election could have been legitimate is if Trump had won, and went in search of evidence—no matter how flimsy—to support that conclusion. And armed with such “evidence,” they developed legal arguments that, to any even slightly disinterested observer, would have seemed utterly detached from reality. It is this inability to separate their legal judgment from their partisan desires that is the most troubling aspect of their conduct. 
So what can be done? Professional sanction by one’s fellow lawyers can be effective even if it falls short of formal action by courts or the bar. Following the Saturday Night Massacre, ABA president Chesterfield Smith issued a scathing statement, published in the New York Times and adopted in full a few days later by the entire ABA, calling on the courts and Congress to “repel the attacks which are presently being made on the justice system and the rule of law as we have known it in this country.”  The D.C. Bar—and the bar association in California, where Eastman is barred—could make similar statements, whether or not the state bars themselves take any formal disciplinary action. In its statement after the Saturday Night Massacre, the ABA also publicly praised those lawyers who refused to dismiss the Watergate special counsel, and professional organizations could do the same here with respect to Rosen and Donoghue.
Unofficial social sanction—banishment from polite society—can also play a role. After former attorney general Alberto Gonzales resigned after his involvement in the scandal over the politicized firing of U.S. attorneys—an event that seems almost comically trivial in comparison with the attempt to overturn the 2020 election—he was effectively unemployable for several years given his disgraced reputation. This sent a message to future administration lawyers that their actions would have professional and personal consequences that would follow them after their time in office.
In this light, it’s notable that Jeffrey Clark is currently employed by the New Civil Liberties Alliance—an organization that claims to “protect constitutional freedoms” and “restore Americans’ fundamental rights”— as its “chief of litigation and director of strategy.” For now, anyone is entitled to have Clark as their lawyer, but it is jarring, to say the least, that Clark is the chief lawyer for an organization that claims to “protect constitutional freedoms” and “restore Americans’ fundamental rights.” Eastman, for his part, remains a senior fellow of the conservative Claremont Institute and head of its Center for Constitutional Jurisprudence. On Oct. 11, the institute released a statement defending Eastman and his legal advice, writing, “[A]ttempts to limit the Claremont Institute’s and John Eastman’s ability to express their views mark a dangerous escalation in the censorship now threatening American democracy.”
The very core of a profession is that it regulates itself according to high standards. To fail to act on those standards, formally or informally, doesn’t merely undermine deterrence for future misbehavior, it is also deeply demoralizing for the rest of the profession: the more than a million other lawyers in this country who swear an oath to defend the Constitution. People can change, and reputations can be rehabilitated. But that starts with a reckoning and an apology, neither of which appears to be forthcoming from either Clark or Eastman. 
At the end of the day, the real protection against the anti-democratic efforts described by the Judiciary Committee comes down to the good faith of the people who hold power—their commitment to maintaining democracy and to allowing themselves to be restrained by the rule of law. Trump lacked that good faith, or anything close to an understanding of why it would matter. Clark, arguably, lacked it too. The problem, of course, is that good faith is a great deal harder to enforce by legislation than anything the Judiciary Committee proposes here. Professional and social consequences can do some of this work, but not all. That’s what makes the committee’s report so alarming: The events from November 2020 through January 2021 make it clear that the implicit restraint of fidelity to the rule of law is no longer a requirement for elevation to high office.
© 2021 The Lawfare Institute

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