Friday, May 24, 2024

Jeffrey Clark Responds

Jeffrey Clark has filed his post-hearing brief in the District of Columbia bar disciplinary case

This is an ethics case. To decide whether Respondent violated Rule 8.4, the Hearing Committee must first determine that Mr. Clark’s conduct on behalf of his client, including the draft letter proposed but never sent on behalf of that client, breached a duty to the client or to a court.

This case arises from a factual and policy dispute among the highest-ranking lawyers in the Justice Department (“DOJ”). The Attorney General, and those  appointed as Assistant Attorneys General “shall give [their] advice and opinion on questions of law when required by the President.” 28 U.S.C. §511, 506. The only person with authority to resolve the policy dispute was President Trump, and he did so in a meeting in the Oval Office. The President never complained about Mr. Clark’s advice or conduct.

The Rules are explicit: “A lawyer shall abide by a client’s decision concerning the objectives of the representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means by which they are to be pursued.” Rule 1.2(a). Under Rule 1.2(d): “A government lawyer’s authority and control over decisions concerning the representation may, by statute or regulation, be expanded beyond the limits imposed by paragraphs (a) and (c).”

Here the client was the President of the United States in his official capacity, who, pursuant to U.S. Const. Article II §1 is the Executive Branch. President Trump was therefore “the highest authority [in the Executive Branch] that [could] act on behalf of the [United States] as determined by applicable law.” Rule 1.13(b). Clark,  Tr. 527.

Since the President was the client, ODC has no case against Respondent. Mr. Clark sought “zealously and diligently within the bounds of the law,” Rule 1.3, to keep the President informed during a time when there were major disagreements over the facts and over the wisdom of using powers vested in the DOJ. Rule 1.4. It is undisputed that the President asked for Mr. Clark’s advice. In providing it, Mr. Clark consistently sought to “exercise independent professional judgment and render candid advice.” Rule 2.1. Reviewing all cases in the D.C. Court of Appeals (“DCCA”) applying Rule 8.4, we find none where ethics charges were brought over a rancorous policy dispute within an organization. Nor have we found any case of “attempted dishonesty” in any document, much less a draft, that laid bare the essence of that policy dispute. Nor have we found any case in which ODC sought to penalize an attorney for doing what is required by Rule 1.13 when such disputes arise.

I expect that Disciplinary Counsel will reply challenging the premise that a junior officer (or any officer) of the Department of Justice functions as an attorney who represents a President as a client.

I also expect them to challenge the premise that this was a "policy dispute" and not an attempt to subvert democracy.

There is no comparable prior case because nothing remotely like this has ever occured in the past. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2024/05/jeffrey-clark-responds.html

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