Motion Denied: Jeffrey Clark Successfully Thwarts DC Bar Office of Disciplinary Counsel's Motion to Enforce Subpoena Duces Tecum on Fifth Amendment Privilege Grounds

In what looks to be a reaffirmation of hornbook law regarding the 5th Amendment's Privilege Against Self-Incrimination, the District of Columbia Court of Appeals, not to be confused with the U.S. Court of Appeals for the District of Columbia Circuit, has denied the DC Bar Office of Disciplinary Counsel's ("ODC") Motion to Enforce its Subpoena Duces Tecum against former Assistant Attorney General Jeffrey Clark.  The ODC is investigating Clark for the draft letter he apparently wrote, but never sent, to various State of Georgia government officials. According to the ODC Complaint, Clark's letter informed the Georgia officials that the DOJ "had identified significant concerns that may have impacted the outcome of the election" in Georgia.  On January 3, 2021, Clark told allegedly higher-ranking DOJ officials, including Acting Attorney General Jeffrey Rosen, that he planned to send the letter to Georgia officials in the event that: Rosen refused to do so, Rosen was fired, and Clark was placed in charge of DOJ by Trump. ODC's subpoena commanded Clark to, "Produce all documents and records (stored in hard copy or electronically), of which you were aware before January 4, 2021, that contain evidence of irregularities in the 2020 presidential election and that may have affected the outcome in Georgia or any other state." What was ODC up to? If Clark was unable to produce any such records in response to the subpoena, his subpoena response would be used against him in the disciplinary proceedings, to show that he was planning to lie to the Georgia officials. Clark moved to  quash the subpoena,  invoking his Fifth Amendment Privilege Against Self-Incrimination. As his brief notes:

ODC’s subpoena is, in substance, a set of disguised interrogatories. For example, the subpoena begins with “[p]roduce all documents and records…of which you were aware before January 4, 2021 that contain evidence of irregularities in the 2020 presidential election.” (emphasis added). If Mr. Clark were forced to comply with this and similarly worded requests, he would not only be producing documents but 'testifying' on various subjects such as the state of his knowledge on a particular date relevant to the case. This is an obvious Fifth Amendment violation under In re Artis, 883 A.2d at 101. Because of ODC’s decision to issue disciplinary interrogatories (which are illegal under In re Artis) under the guise of a subpoena, this Court need not reach the act of production doctrine and can decide the case on pure Fifth Amendment testimonial grounds, as the In re Artis court did as well. However, even if ODC’s subpoena had properly limited itself to requesting documents and not testimony, Mr. Clark would still have a valid Fifth Amendment claim under the act of production privilege.

A panel of the District of Columbia Court of Appeals initially summarily rejected Clarke's claim without comment. Clark moved for reconsideration and the Court of Appeals granted his motion in a brief Order. An opinion will follow. This was really a no-brainer under governing case law. We will publish the full opinion when it comes out. Meanwhile, below are the relevant documents. Congratulations to Clark's attorneys, Charles Burnham, of Burnham & Gorokhov, Harry MacDougald, and Robert Destro.

In re Jeffrey B. Clark Esquire--SUBPOENA.

PETITION - Petition For Rehearing and Rehearing En Banc (1).

In re Jeffrey B. Clark Esquire--Office of Disciplinary Counsel En Banc Response.

In re Jeffrey B. Clark Esquire--Order Granting Motion for Rehearing and Denying DC Office of Disclipinary Counsel's Motion to Enforce Subpoena Duces Tecum.

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