Jeff Clark in His Own Words: Why I Fight to Honor Executive Privilege - The American Spectator | USA News and Politics
Jeff Clark in His Own Words: Why I Fight to Honor Executive Privilege
by

January 16, 2022

In late January 2021, a group of anonymous leakers, violating their duties of confidentiality, went to the New York Times claiming that they had wisely restrained former President Trump in the wake of the 2020 presidential election. I was painted as the villain in their narrative because of what they asserted about my legal advice, ignoring that the President wields constitutional power to consult as he sees fit with his inferiors in the Executive Branch, especially with those confirmed by the Senate. Senate-confirmed officials wield larger spheres of discretion than those who are not confirmed — subject at all times, of course, to the President’s unitary command and power to decide.

Ever since, the media has written a steady stream of stories attacking my character, calling me an “obscure attorney” or a “mid-level” official. Neither is true. As implied by my Senate-confirmed status, I eventually became a significant leader at the U.S. Department of Justice under President Trump. From 2018 and ending in 2021, I had charge at any given time of as many as 1,400 lawyers spread across two of the seven DOJ litigating Divisions.

Few lawyers are household names. Most prefer standing at a podium arguing to judges, as I do, over appearing on TV. Like many public servants, I served this country in two different presidential administrations and never sought the limelight. I focused instead on the merits of winning cases in the courts. But constant attacks on my character for almost a year now force me to respond to the accusations, for my family’s sake alone.

To start, I’d like to share some personal history. I was born into a middle-class family and carried the values of my modest upbringing as I rose through elite educational, private, and governmental institutions. My Dad was a lifelong Democrat truck driver who never graduated from high school and despite being diagnosed with only a year to live before I even started college, his grit managed to get him through long enough to see his eldest son’s son get to double digits in age and to see me, his youngest, graduate from Harvard with a degree in economics and Russian/Soviet history (training that would inform my future work opposing the creep of government socialism). Sadly, we lost him to his fight with cancer before I went on to law school at Georgetown.

Other than my clerkship with the eclectic Judge Boggs, who prizes clerks with wide knowledge outside the law, my entire legal career up until January 2021 was spent at one of two places — the law firm of Kirkland & Ellis or the Justice Department. Though I also spent a decade of that time also serving as an Adjunct Professor at the George Mason University Law School, now the Antonin Scalia Law School.

Just a few years after my clerkship while with Kirkland in 1999, I argued my first appeal in the D.C. Circuit in a notable False Claims Act case. I was counsel for a Czech-born psychiatrist, who’d survived the Nazis and the Soviets, but ran afoul of an extreme reading of the arcane Medicare/Medicaid billing system, eventually forcing his exit from the medical profession. By 2001, I was expert in administrative law, and working in a wide variety of areas — constitutional law, environmental law, antitrust, etc.

During my political appointment from 2001-2005 at the Justice Department, I won Massachusetts v. EPA at the D.C. Circuit stage, upholding the Bush Administration’s decision not to regulate greenhouse gas emissions from new vehicles. At DOJ, I also prevailed in a case to block South Carolina Governor Hodges’ attempt to prevent the Department of Energy from moving weapons-grade plutonium into South Carolina in accord with an arms-limitation agreement with Russia. And outside the courtroom, I helped avert threatened violence between farmers, Native Americans, and federal officials in the Klamath Valley.

Once back at Kirkland & Ellis in 2005, I continued my career involving complex litigation. After being personally endorsed by my then-partner (and future Deputy Attorney General and later Acting Attorney General), Jeff Rosen, for the role, I argued a notable follow-on case to Massachusetts v. EPA for the U.S. Chamber of Commerce at a rare two-day D.C. Circuit oral argument. The Supreme Court would go on to reverse a significant portion of the lower court’s decision in favor of my client. Indeed, at the time, I was frequently shuttling between D.C. and New Orleans, where I was simultaneously working on wrapping up key aspects of one of the largest class-action settlements in history.

But perhaps most notably in the period 2010-2018, I argued more than a dozen appeals in the Fifth Circuit arising out of the Deepwater Horizon oil spill in the Gulf of Mexico, winning around 80 percent of those appeals. Senator Whitehouse recognized that body of work and at my 2017 Senate Judiciary confirmation hearing, he tried to spin my extensive litigation experience against me and claim that, if I were confirmed, the oil industry would be put in charge of environmental law. Senator Whitehouse’s fears were misplaced. In a 2019 appeal in the Ninth Circuit, I lead DOJ on behalf of the Chemical Safety Board against a big-shot West Coast specialist in white-collar crime tasked to defend Exxon. In that fight, I ensured that the United States could hold Exxon to account for a massive explosion and chemical release in Torrance, California.

While leading DOJ’s Environment & Natural Resources Division from 2018-2021, I also defeated the “climate kids,” who were trying to infuse a single federal judge in Oregon with the power to wrest climate change policy away from democratically accountable cabinet agencies and White House oversight. Despite a media blitz for the kids, including favorable coverage from 60 Minutes (which failed to cover my response to CBS), my work helped establish an important precedent enforcing Article III of the Constitution’s limited jurisdiction for federal courts.

Once I also took over DOJ’s Civil Division in 2020, I continued litigating cases personally, including by defeating a constitutional challenge brought by Puerto Rico to a congressional ban on animal fighting. And, as one last example of my work, I demanded information from New York as part of the DOJ’s investigation into former Governor Cuomo’s disastrous policy of sending those infected with COVID into nursing homes.

In sum, I dutifully fulfilled my role as an advocate in multiple presidential administrations with the intent of doing what someone at DOJ representing agencies or the President must do: give sound legal advice, advocate for my clients, and ultimately seek a just outcome within the bounds of the law.

Sound, privileged advice is essential for a President to act as the energetic Executive the Framers designed to lead the Article II branch of the federal government. And relatedly, it’s essential for a Senate-confirmed official in the Department of Justice be able to speak freely in the halls of counsel. How can a client be best served if his advocate is fearful of being lynched, in effect, for giving his honest opinion?

As others have noted, hair-trigger waiver by a succeeding President of the executive privilege held by a prior President is constitutional anathema. It would transform in an instant all advising officials to the President in the Executive Branch into the timid and the tepid. These chilling effects on both the President as client and his lawyers and other advisors must be resisted to protect the Executive Branch against legislative encroachment.

Traceable back ultimately to the New York Times leakers, I’m now under scrutiny by the House’s Select Committee on January 6. I cannot, on a point-by-point basis, refute the positions they take in the press, whether in the form of their overt statements or their covert leaks. This is because I cannot disclose my conversations with the President. My hands are tied by a letter sent to me by former Congressman Doug Collins, acting as the lawyer for President Trump. That letter left me no choice but respectfully refuse to comply with the Committee’s request to reveal my conversations with former President Trump about the 2020 election or any other topic.

The President must have executive privilege so that he may be secure honest advice without fear of retribution for himself or his advisors. And executive privilege is the President’s privilege to either keep or waive, not mine. I am bound to honor his privilege and I regard my obligations in that vein as sacrosanct.

Indeed, Doug Collins went so far as to repeat his original instruction with even more vigor later, by underscoring that the purported waiver by the Biden DOJ of President Trump’s executive privilege was a mere political act that is completely at odds with historic practices and legal precedent.

President Washington was the first to invoke executive privilege — in 1796 no less. Coming forward to the present day, as Collins told the media: “‘I would hope they would honor that,’ … when asked whether Rosen and the other officials should withhold certain deliberations from Congress. ‘The former president still believes those are privileged communications that are covered under executive privilege.’”

I have honored and will continue to honor what Congressman Collins told me per his instructions from President Trump, unless the Supreme Court comes to a different judgment. And, make no mistake, it would be my duty to press the necessary remedies that far.

Executive privilege is crucial for all presidents. No successor to President Biden should be able to waive the confidentiality of advice given to Biden, or else every future presidential advisor will hesitate before giving an honest opinion. The principle I am defending is an equal-opportunity one that protects presidents on either side of the aisle. It is not a one-sided proposition benefitting only President Trump.

Perhaps unsurprisingly with a House that seems to recognize no limits on its legal authority, the J6 Committee dismissed my executive privilege objections with sparse introspection, at least judging by the head-spinning speed with which Chairman Bennie Thompson informed me of his decision. Facing members of the House majority, their allies in the legal academy and pressure groups, as well as the media calling for me to be criminally prosecuted, I accordingly invoked my personal Fifth Amendment right not to testify, on top of the rights the President himself holds under our system of separation of powers.

In response to me claiming my constitutional rights, Committee Chair Thompson told Rachel Maddow: “If [Clark] is saying, ‘I’ll come but I’ll plead the Fifth,’ then in some instances that says you’re part and parcel guilty of what occurred.” No, Representative Thompson, that’s not how the Fifth Amendment works.

The Constitution can’t be turned off even when a President the entrenched establishment happens to dislike intensely is involved, as much as some in Washington and in the media might wish that were so. Nor does the Constitution make Congress the master branch standing head and shoulders above the other two co-equal branches of government.

My fight isn’t just for myself. It’s on behalf of the Constitution and our Bill of Rights privileges. And for the sake of all Presidents and advisors who come after me, it’s a fight that must be won.

Jeff Clark is the former Senate-confirmed Assistant Attorney General of the Environment & Natural Resources Division of the U.S. Justice Department (2018-2021). And from 2020-2021, he was also named and simultaneously served as the former Acting Assistant Attorney General of DOJ’s Civil Division (2020-2021). Mr. Clark, unfortunately, was subpoenaed by the January 6 Select Committee’s unprecedented inquisition, even though he had no involvement with the events that day. His legal defense fund can be found at www.givesendgo.com/jeffclark.

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