What does Jeffrey Clark have to hide — and what are Congress and AG Garland going to do about it?

On Nov. 5, former Trump Assistant Attorney General Jeffrey Clark displayed his contempt for Congress in a way he must have imagined would reduce his risk of being charged with that offense. Unlike Steve Bannon, Clark showed up for his subpoenaed appearance before the House Select Committee investigating the Jan. 6 insurrection, making his conduct appear compliant. But just like Bannon, Clark stonewalled the committee, sheltering under Donald Trump’s legally untenable assertions of executive privilege.

The bottom line was the same — two witnesses keeping from Congress and the public what they know about Trump’s role before, on and after Jan. 6.

Clark, however, knew what Bannon could only have hoped: that Attorney General Merrick Garland seems disinclined to move with urgency when Congress makes a criminal contempt referral for prosecution.

In a matter like this, that is a problem — just as is Garland’s failure to act with dispatch to hold accountable under the law those who may have designed and planned what Timothy Snyder, historian of authoritarianism, has called “a failed coup,” accompanied by a violent insurrection.

As for Bannon, we dare to hope that Garland’s Justice Department will soon prosecute him for criminal contempt of Congress. Bannon’s conduct, like Clark’s, exacerbates the crisis that now embroils our constitutional republic.

Their defiance also threatens Congress’s constitutionally delegated legislative power and the rule of law. As the Supreme Court ruled in McGrain v. Daugherty in 1927, when Congress was investigating President Warren Harding’s Teapot Dome Scandal, Congress’s power of inquiry — and its necessary adjunct, the power to compel testimony — are essential to the legislative function. The court upheld Congress’s inherent contempt power, reasoning that if subpoenas are not enforced with punitive sanctions, Congress’s investigative and legislative powers wither because witnesses will ignore with impunity Congressional demands for testimony.

The Jan. 6 Committee subpoenaed Clark’s testimony based on evidence that he “sought to involve the Department of Justice in an effort to disrupt the peaceful transfer of power.” In apparent collaboration with Trump’s White House, on Dec. 28, 2020, Clark proposed that the DOJ issue a draft letter falsely alleging that the DOJ was investigating substantial voter fraud. It called for Georgia’s legislature to rescind its Dec. 14 certification of President Biden’s victory in the state, investigate Trump’s allegations of fraud and take “appropriate action,” such as certifying Trump’s slate of electors.

In fact, the DOJ had found no widespread voter fraud.

Further, nothing in the Constitution, nor in the history of enforcing it, supports the DOJ having authority to tell a state how to run its electoral count process, as Clark’s letter proposed to do.

For both reasons, Jeffrey Rosen, Trump’s acting attorney general, refused to issue the letter. Rosen has already given testimony to the Committee.

Then why won’t his subordinate, Clark, testify? What does he have to hide?

Clark seems to have been “Mr. Inside” in a confederation of Trump lawyers working the legal strategy to stop the Jan. 6 certification of Biden’s election. On Dec. 10, Trump’s personal attorney, Rudy Giuliani, traveled to Georgia, the focus of Clark’s letter, to pressure legislators there to name a Trump slate of electors based on ballot fraud of a scale that no credible evidence supported. 

Another outside Trump lawyer, John C. Eastman, reportedly fed Vice President Mike Pence a legally untethered script Eastman claimed would enable Pence to delay Congress’s Jan. 6 certification of Biden’s win and give time for state legislatures to revisit their own electoral slate decisions. Just as Clark’s letter had advocated. See a pattern?

Yesterday the committee subpoenaed Eastman. It’s easy to foresee his refusing to testify if Congress doesn’t refer Clark to the DOJ for prosecution — and if Garland doesn’t pursue prosecution of both Clark and Bannon.

Importantly, in a Nov. 4 hearing in the case of Trump v. Thompson, a federal court signaled skepticism of the assertion of executive privilege on which these witnesses are relying. In that case, citizen Trump is seeking to block production of his administration’s White House documents that the Jan. 6 Committee has subpoenaed.

Cross-examining Trump’s lawyer, U.S. District Court Judge Tanya Chutkan forced Trump’s lawyer to acknowledge that the privilege belongs to “the institution of the presidency,” not to Trump himself. Then the court focused on the fact that President Biden, recognizing Congress’s compelling need to investigate the insurrection, had declined to assert the privilege. “The person best able to determine whether there’s an executive privilege,” the court stated, “is the current executive.” The judge said she would rule “expeditiously.”

If that ruling emerges as expected and Clark does not relent, the Select Committee should vote to have the House refer him to be prosecuted for criminal contempt.

Tolerating disregard of its authority to investigate a violent insurrection targeting the peaceful transition of power following a fair and lawful presidential election would nullify Congressional power and destabilize government under law.

With such acquiescence, we hardly need await another insurrection to witness a grave self-inflicted wound to the constitution and the nation.

NOTE: This post has been updated from the original to correct Jeffrey Clark’s title.

Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard, the author of many books about the Constitution and the Court, and a Supreme Court advocate. Follow him on Twitter @tribelaw.

Dennis Aftergut is a former federal prosecutor.