Monday, November 27, 2023

The Continuing Adventures Of Jeffrey Clark

The endless flurry of pleadings (by my count eight last Thursday) in the Jeffrey Clark D.C. bar discipline matter includes Disciplinary Counsel's objection to the adequacy of Respondent's witness disclosures and, more significantly, the relevance of his apparent desire to turn the matter into a 2020 election re-litigation circus

Regarding the 2020 presidential election in Georgia, Disciplinary Counsel generally objects to any witness whose testimony concerns issues arising after January 3, 2021, or of which Respondent was unaware until after January 3, 2021. The specification alleges that Respondent drafted his “Proof of Concept” letter on December 28, 2020, and did not stop pushing for it to be sent to Georgia officials until January 3, 2021. Testimony about irregularities or other election issues in Georgia is therefore not relevant to this disciplinary proceeding unless Respondent was aware of those things prior to January 3. It does not matter what evidence may have been uncovered in or about Georgia after that date; what matters here is what, if anything, Respondent knew about the election in Georgia at the time he was pushing to send his letter. If Respondent is allowed to put on irrelevant evidence about which he was unaware of prior to January 3, then Disciplinary Counsel should have the right to call rebuttal witnesses—including, but not limited to, officials from Georgia—to show that there were no irregularities sufficient to affect the outcome of that state’s 2020 presidential election. Because evidence of which Respondent was unaware as of January 3, 2021 is irrelevant, we do not intend to rebut it; going down that path would turn what should be a simple disciplinary proceeding into a protracted and needless election contest.

Among the multiple motions of Respondent is one that requires Disciplinary Counsel to prove it has jurisdiction to proceed

It is quite clear by now that there has never been a disciplinary case brought by ODC that remotely resembles this case. We have been unable to find a disciplinary case anywhere over a draft letter that was never sent. When one adds in the other unique characteristics of this case, it should be an undisputed fact that ODC does “not ordinarily apply its rules of ethical conduct to particular conduct or activity by the attorney” at issue in this case. Accordingly, the jurisdictional requirements of 28 U.S.C. 530B and 28 C.F.R. § 77.2 cannot be satisfied in this case.

The inference that this case is politically motivated and the product of local passions and prejudices against the former national government is clear and compelling–and thus constitutes the very thing that the jurisdictional prerequisites of 28 U.S.C. 530B and 28 C.F.R. § 77.2 were intended to prevent. Putting that aside, however, we are entitled to a ruling that ODC must produce evidence that can show that ODC can comply with the threshold requirements of superior federal statutory and regulatory law that even allowed it to open, let alone prosecute or continue prosecuting a case like this one.

Jurisdiction flows from Respondent's membership in the D.C. Bar.

Rule XI, Section 1. Jurisdiction 
  (a) Persons subject to disciplinary jurisdiction. All members of the District of Columbia Bar, all persons appearing or participating pro hac vice in any proceeding in accordance with Rule 49(c)(1) of the General Rules of this Court, all persons licensed by this Court Special Legal Consultants under Rule 46(c)(4), all new and visiting clinical professors providing services pursuant to Rule 48(c)(4), and all persons who have been suspended or disbarred by this Court are subject to the disciplinary jurisdiction of this Court and its Board on Professional Responsibility (hereinafter referred to as "the Board").

Mercifully, no one has ever sought to use the Department of Justice in the manner that "remotely resembles" what is charged here. (Mike Frisch)

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