Former Acting Attorney General Jeffrey Clark Provided A Roadmap To A Coup D’etat

Multiple news outlets reported this week on a draft letter by former acting Attorney General Jeffrey Clark, a QAnon cultist Trump sycophant, that was a roadmap to Trump’s coup d’etat plot. It would have resulted in the worst constitutional crisis in American history if higher ups at the Department of Justice had not threatened a mass resignation à la Watergate’s Saturday Night massacre.

ABC News reports, DOJ officials rejected colleague’s request to intervene in Georgia’s election certification: Emails:

Top members of the Department of Justice last year rebuffed another DOJ official who asked them to urge officials in Georgia to investigate and perhaps overturn President Joe Biden’s victory in the state — long a bitter point of contention for former President Donald Trump and his team — before the results were certified by Congress, emails obtained by ABC News show.

The emails, dated Dec. 28, 2020, show the former acting head of DOJ’s civil division, Jeffrey Clark, circulating a draft letter — which he wanted then-acting attorney general Jeffrey Rosen and acting deputy attorney general Richard Donoghue to sign off on — urging Georgia’s governor and other top officials to convene the state legislature into a special session so lawmakers could investigate claims of voter fraud.

“The Department of Justice is investigating various irregularities in the 2020 election for President of the United States,” the draft letter said. “The Department will update you as we are able on investigatory progress, but at this time we have identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.”

The draft letter states: “While the Department of Justice believe[s] the Governor of Georgia should immediately call a special session to consider this important and urgent matter, if he declines to do so, we share with you our view that the Georgia General Assembly has implied authority under the Constitution of the United States to call itself into special session for [t]he limited purpose of considering issues pertaining to the appointment of Presidential Electors.”

The vote count in Georgia became a flashpoint for Trump and his allies and Trump at one point falsely claimed that it was “not possible” for him to have lost the state.

But to date, the Justice Department has uncovered no evidence of widespread voter fraud that would tip the results of the presidential election. Attorney General William Barr also announced in December that the department had “not seen fraud on a scale that could have effected a different outcome of the election.” A statewide audit in Georgia last year also affirmed that Biden was the winner.

The emails were provided by the DOJ to the House Oversight Committee, which is investigating efforts to overturn the election results. And they come as the DOJ investigator general looks at whether any officials in the department sought to overturn the outcome of the election.

Last week the Department of Justice sent letters to six former Trump DOJ officials telling them that they can participate in Congress’ investigation into the Jan. 6 attack on the U.S. Capitol. One of those letters was to former Associate Deputy AG Patrick Hovakimian, who sources said sat for a transcribed interview Tuesday morning with the House Oversight Committee.

Notes from Donoghue released last week appeared to show that Trump tried to pressure the DOJ to assert that there was significant fraud in the election.

ABC News has requested comment from Clark but has not yet received a response. A spokesperson for the House Oversight Committee did not immediately respond to request for comment, nor did an attorney for Donoghue.

Clark attached the draft letter in an email to Rosen and Donoghue telling them “I think we should get it out as soon as possible.”

“Personally, I see no valid downsides to sending out the letter,” Clark wrote. “I put it together quickly and would want to do a formal cite check before sending but I don’t think we should let unnecessary moss grow on this.”

Clark separately asked for Rosen and Donoghue to authorize them to receive a classified briefing led by then-Director of National Intelligence John Ratcliffe the next day related to “foreign election interference issues,” while referencing an unspecified theory about hackers having evidence that a Dominion voting machine “accessed the Internet through a smart thermostat with a net connection trail leading back to China.”

Remember, this guy is a QAnon cultist.

Donoghue responded several days later shooting down Clark’s request to sign on to the draft letter.

“There is no chance that I would sign this letter or anything remotely like this,” Donoghue said. “While it maybe true that the Department ‘is investigating various irregularities in the 2020 election for President’ (something we typically would not state publicly) the investigations that I am aware of relate to suspicions of misconduct that are of such a small scale that they simply would not impact the outcome of the Presidential Election.”

Donoghue closed his email response by stating that, while he was available to speak to Clark directly about his request, “from where I stand, this is not even within the realm of possibility.”

Donoghue cited former Attorney General William Barr’s previous statements that the department had no indication fraud had impacted the election to a significant degree, and that no information had surfaced since Barr’s departure that changed that assessment.

“Given that,” he said, “I cannot imagine a scenario in which the Department would recommend that a State assemble its legislature to determine whether already-certified election results should somehow be overriden by legislative action.”

He added that the draft letter’s statement that DOJ would update lawmakers on the investigatory progress was “dubious as we do not typically update non-law enforcement personnel on the progress of any investigations.”

Later that evening, Rosen responded as well, telling both Clark and Donoghue, “I confirmed again today that I am not prepared to sign such a letter.”

The New York Times reported in January about Clark appealing to Donoghue and Rosen to co-sign the draft letter.

In the days after the exchange, as ABC News has previously confirmed, both Rosen and Donoghue thwarted an attempt by Clark to have Trump appoint him acting attorney general. Jeffrey Clark Was Considered Unassuming. Then He Plotted With Trump.

Six months later, the New York Times followed up, Trump and Justice Dept. Lawyer Said to Have Plotted to Oust Acting Attorney General.

Reminder: DOJ watchdog opens probe into possible attempt to overturn 2020 election results:

The Justice Department Inspector General has launched an investigation into whether any former or current officials engaged in an “improper attempt to have DOJ seek to alter the outcome of the 2020 presidential election,” the office announced Monday.

[T]he Times reported on Friday night that Jeffrey Clark, the acting head of the Justice Department’s civil division, had devised a plan with Trump to oust acting Attorney General Jeffrey Rosen and use the Justice Department to force Georgia state lawmakers to overturn its presidential election results.

“The investigation will encompass all relevant allegations that may arise that are within the scope of the OIG’s jurisdiction,” Justice Department Inspector General Michael Horowitz said.

This Federalist Society fascist should already be under arrest and disbarred, but instead he has been rewarded with wingnut welfare, i.e., a new position at the right-wing nonprofit New Civil Liberties Alliance (NCLA). It is largely funded by the Charles G. Koch Foundation.

Mark Joseph Stern explains, The DOJ Official Who Tried to Steal the Election for Trump Has a Sweet New Gig (excerpt):

[N]one of these well-documented, corrupt, anti-democratic plots seems to have hurt his career prospects. To the contrary, after leaving the Justice Department, Clark landed a position as Chief of Litigation and Director of Strategy at the New Civil Liberties Alliance, a conservative-libertarian law firm that battles “the administrative state.” (Its latest actions: supporting a law professor who refuses to get the COVID vaccine and opposing the federal eviction moratorium.) Clark’s transition back into the conservative legal movement illustrates once again that there have been virtually no professional consequences for the many Republican attorneys who tried to steal the election for Trump.

[In] the wake of the 2020 election, Clark latched onto the lie that mass voter fraud had tainted the results, and that Trump was the true victor. He scrambled to throw the Justice Department behind Trump’s machinations to toss out millions of votes and seize an unearned second term. Documentsobtained by the House Committee on Oversight and Reform show Clark urging the Justice Department to investigate conspiracy theories about voter fraud in Georgia. (In one email, Clark noted that he was on the phone with a pro-Trump activist who claimed to have filmed proof of voter fraud in Atlanta. The alleged video evidence never materialized.) He also pressured U.S. Attorney BJay Pak to probe these nonsensical allegations, leading Pak to resign abruptly.

Moreover, Clark appears to have been involved in the campaign for the Justice Department to sue ​​Pennsylvania, Georgia, Michigan, Arizona, Nevada, and Wisconsin. The lawsuit would’ve asked the Supreme Court to nullify the election results in each state and award their electors to Trump rather than Biden. It included claims—made infamous by Sidney Powell’s “Kraken” litigation—that Dominion Voting Systems somehow facilitated voter fraud.

When these efforts failed, Clark launched a conspiracy to oust acting Attorney General Jeffrey Rosen, who declined to facilitate his various plots. Trump and Clark devised a plan: The president would fire Rosen and elevate Clark as acting attorney general; Clark would then inject the Justice Department into Trump’s mad dash to overturn the election. (Recently released contemporaneous notes confirm that the president considered putting Clark in charge of the entire agency.) This coup only failed when DOJ officials threatened to resign en masse upon Rosen’s termination.

Despite the extreme and dangerous nature of these antics, Clark has not been exiled from the conservative legal movement.

[L]ike other right-wing legal groups—including Clark’s own Federalist Society—the NLCA appears to have decided that abetting a failed coup does not render an attorney unfit for employment. The conservative legal movement has welcomed Trump’s schemers back into the fold with open arms. They will, it seems, experience no ramifications for their plots to steal the race. Exploiting the legal system to nullify millions of legal votes is not a deal-breaker for these attorneys; it might even be a job qualification. After all, the many Republican attorneys general who tried to overturn the 2020 election—most of them affiliated with the Federalist Society—faced no consequences for their actions; most of them are already back at the Supreme Court asking the justices to overturn Roe v. Wade.

The insurrectionists, the coup abettors, the lawless partisans demanding mass disenfranchisement: With very few exceptions, they have returned to their plum pre-election posts, or secured even more influential or lucrative new sinecures. Trump is gone, but his most corrupt allies are only amassing more power in his absence.

Where is this all leading? Election law expert Richard Hasen explains at Slate, Trump Is Planning a Much More Respectable Coup Next Time (excerpt):

Despite Trump’s attempts to pressure state election officials, governors, state legislators, and officials at the U.S. Department of Justice like Jeffrey Clark to get state legislatures to meet and declare new electoral college votes for him after the presidential vote was certified for Biden in each challenged state, the system (barely) held, and Trump was removed from office on January 20, 2021.

But there has been a subtle shift in how Trump and his allies have talked about the supposed “rigging” of the 2020 election in a way that will make such claims more appealing to the conservative judges and politicians that held the line last time around. Come 2024, crass and boorish unsubstantiated claims of stealing are likely to give way to arcane legal arguments about the awesome power of state legislatures to run elections as they see fit. Forget bonkers accusations about Italy using lasers to manipulate American vote totals and expect white-shoe lawyers with Federalist Society bona fides to argue next time about application of the “independent state legislature” doctrine in an attempt to turn any Republican presidential defeat into victory.

Trump signaled as much in his March 2021 interview with the Washington Post’s Carol Leonnig and Phil Rucker for their book, I Alone Can Fix It, and key conservative operatives have sent the same signals according to Jane Mayer’s recent blockbuster reporting in the New Yorker about the big money behind the Big Lie.

Trump’s interview with Leonnig and Rucker got attention for Trump saying that he spoke to a “loving crowd” on Jan. 6 before some of them violently stormed the Capitol to try to stop Congress’s electoral college vote count. But what caught my ear was Trump’s explanation of why he said the election was “rigged.” Even putting supposed “massive” fraud aside, he said in posted audio of the interview,

the legislatures of the states did not approve all of the things that were done for those elections. And under the Constitution of the United States, they have to do that. And the Supreme Court, they didn’t find fact—don’t forget, they didn’t say they disagreed—they said we are not going to hear the case. I’m very disappointed in the Supreme Court. Had Mike Pence had the courage to send it back to the legislatures, you would have had a different outcome, in my opinion…. Before you even start about the individual corruptions … when you are handed these votes, and you know that the legislature of any one of those states did not approve those vast changes—hours, days, when to vote—it was all done, local politicians and local judges—right there you should have sent them back to the legislatures. And I can show you letters from legislatures. They wanted them back… Had they gotten them, it would have been a much different story.

It wasn’t just Trump advancing this argument to try to overturn the election. It also was a cadre of conservative activists like Leonard Leo, co-Chairman of the Federalist Society, whose Orwellian-named “Honest Elections Project” pushed the same argument before the Supreme Court. As leading election law scholar Nate Persily told Jane Mayer for the New Yorker, the Independent State Legislature doctrine is “giving intellectual respectability to an otherwise insane, anti-democratic argument.”

So how does this argument work? Article II of the Constitution of the United States provides that state legislatures get to set the “manner” for choosing presidential elections. Similarly, Article I, section 4 gives the state “legislature” the power to set the time, place, and manner for conducting congressional elections, subject to congressional override. In practice, these clauses have been understood as allowing the legislature to set the ground rules for conducting the election, which are then subject to normal state processes: election administrators fix the details for administering the vote, state courts interpret the meaning of state election rules, and sometimes judges and officials decide when state rules violate state constitutional rights to vote.

Republicans challenged that extension, arguing that the U.S. Constitution makes the legislature supreme, even if the state legislature would otherwise be violating the state constitution as determined by the state supreme court. This is the “independent state legislature” doctrine because it proposes that the legislature is supreme against all other actors that might run elections. This is a wacky theory of legislative power, but it is one that four Supreme Court justices (Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas) expressed support for in various opinions during the 2020 elections, and it echoes an alternative argument that former Chief Justice William Rehnquist, joined by Justice Thomas and former Justice Antonin Scalia, made in the Bush v. Gore case ending the 2000 election and handing victory to Republican George W. Bush.

Justice Alito thought enough of the argument in the 2020 Pennsylvania case to order ballots arriving in Pennsylvania in the three days after Election Day to be set aside for possible exclusion from the count. Fortunately, there were only about 10,000 such ballots, and they did not determine the outcome of the presidential race (Biden won there by about 80,000 votes.)

The 2020 fight over the independent state legislature doctrine was a close call. It would not be at all surprising to see at least five or perhaps all six conservative justices embrace the argument next time it comes before the court in a timely way.

It’s easy to picture how this might play out in the next presidential election. Imagine that a state legislature sets forth general rules for conducting the 2024 election, but it does not provide every detail about how the election is run. Republican legislatures in states won by the Democratic candidate could seize on some normal election administration rule created by a state or local election administrator or some ruling from a state court, and argue that implementation of the rule renders the presidential election unconstitutional, leaving it to the state legislature to pick a different slate of electors.

Now maybe the courts won’t bite on this theory—in 2020, Justice Kavanaugh seemed wary of the argument because it came very late in the process. But it might not take court involvement to create chaos and try to flip election results. A state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore the legislature will take matters into its own hands and choose its own slate of electors.

Should Republicans control Congress in early 2024, they could well accept these arguments as they count Electoral College votes, even as such arguments were rejected by a Democratic-led Congress (over the objections of well over 100 Republican members of Congress) in 2020. They might try to count the votes from the state legislature rather than votes reflecting the people’s will. The independent state legislature argument—which would essentially overturn U.S. elections to make the loser the winner—would have an air of respectability that would not depend upon a claim that the election was rife with fraud or stolen, but that the actions of the state’s governor, or courts, or election administrators violated the Constitution by usurping the legislature’s rights. Again, all of this is scarily plausible.

The Jan. 6 insurrection, and Trump’s actions trying to change the electoral college votes in five states, was an attempted coup built on the Big Lie of voter fraud. But the potential coup next time will come in neatly filed legal briefs and arguments quotingThomas Jefferson and wrapped in ancient precedents and purported constitutional textualism. It will be no less pernicious.

UPDATE:

Despite House Oversight hitting the brakes RE Trump DOJ, Senate Judiciary Committee is full steam ahead. They're scheduled to interview Jeff Rosen and Rich Donoghue in the coming dayshttps://t.co/zNcG3yT9lD

— Betsy Woodruff Swan (@woodruffbets) August 5, 2021