Clark Effort Opposed

District of Columbia Disciplinary Counsel has filed its opposition to Jeffrey Clark's effort to invoke review of his bar discipline case by the Court of Appeals

Respondent Jeffrey Clark has petitioned the court for review of five orders by the Board on Professional Responsibility and Hearing Committee Number 12. Mr. Clark styles these orders as “interlocutory,” and argues that they deny his claim of immunity under Trump v. United States, ___ U.S. ___, 144 S. Ct. 2312 (2024). R. Pet. 1. Mr. Clark cites no case law, statute, or rule allowing for interlocutory review in disciplinary proceedings. That is because there is none. His petition is procedurally improper.

The court’s statutory authority to hear interlocutory appeals is limited to orders issued by the D.C. Superior Court. D.C. Code § 11-721; see also D.C. App. R. 5, 6. To the extent that Mr. Clark is attempting to seek review under D.C. App. R. 15 (review of agency orders and decisions), neither the Board nor Hearing Committee Number 12 are agencies of the District of Columbia. See generally D.C. Code § 11-722. Instead, they are functionaries of this court. See D.C. Bar R. XI, §§ 4, 5. Rule XI, which the court promulgated to govern disciplinary matters, does not provide for interlocutory review. Rather, Board Rule 13.9 provides that the Court may review orders issued by the Board “after all the proceedings before the Board are concluded and the Board has recommended or imposed a sanction,” so long as a respondent has made a written objection to such orders. And hearing committees do not issue final decisions; they make findings of fact and recommendations that are then reviewed by the Board and, ultimately, the Court. Rule XI, §§ 5, 6; see also Board Rule 7.16 (hearing committee rulings on motions). Here, Hearing Committee Number 12 has only recommended that Mr. Clark’s immunity claim be denied after briefing, and the Board has not yet considered the question. Assuming arguendo that interlocutory review was available, neither the hearing committee nor the Board has “conclusively” determined whether Mr. Clark has immunity. See McNair Builders, Inc. v. Taylor, 3 A.3d 1132, 1135 (D.C. 2010) (listing “stringent” requirements to satisfy “collateral order doctrine”).

Mr. Clark’s petition is also substantively without merit. Trump held that a former president is absolutely immune from criminal prosecution for the exercise of core constitutional powers. 144 S. Ct. at 2329-2330. It also held that evidence of official acts may not be admitted into evidence against a former president to prove an element of a crime arising from his unofficial acts. Id. at 2340-2341. Trump says nothing about immunity for anyone other than the president in any context other than criminal prosecutions. Mr. Clark erroneously and untenably stretches Trump’s narrow holdings beyond recognition to claim that he is immune from professional discipline as one of the former president’s subordinates who was assisting in an official act (i.e. communicating with the Department of Justice). The Supreme Court said no such thing.

Based on the foregoing, the Court should deny Mr. Clark’s petition for interlocutory review.

(Mike Frisch)