A panel of the D.C. Court of Appeals ruled unanimously on Monday that the D.C. Bar’s Office of Disciplinary Counsel (ODC) unconstitutionally subpoenaed documents from former President Donald Trump’s former DOJ official Jeffrey Clark in violation of his Fifth Amendment rights.
In addition to facing ODC disciplinary charges for his role in assisting Trump in handling the 2020 presidential election irregularities, Clark was indicted along with Trump and others in Georgia and is an unnamed co-conspirator in another case. The court issued its decision immediately after a hearing on Friday.
The court issued a brief opinion, stating that a lengthier one will come out later. “ODC’s motion to enforce its subpoena is denied because it infringes on Mr. Clark’s Fifth Amendment right not to be compelled to be a witness against himself,” the court ruled.
The ODC had demanded documents from Clark (pictured above) that “contain evidence of irregularities in the 2020 presidential election and that may have affected the outcome in Georgia or any other state.”
The ODC is going after Clark for drafting a memo to Georgia officials shortly after the 2020 election that was never sent, advising them of options they could take to deal with the irregularities. The disciplinary counsel argued that it wanted to determine what Clark relied upon when he drafted the memo. The ODC charged him in July 2022 with dishonesty and attempting to interfere with the administration of justice.
Clark argued that turning the documents over would risk jeopardizing his Fifth Amendment right not to incriminate himself since he is also being prosecuted in Fulton County District Attorney Fanni Willis’s RICO case and is an unnamed co-conspirator in Jack Smith’s federal case.
During last week’s hearing, Clark’s attorney, Charles Burnham, told the panel that the facts in the disciplinary proceeding overlap considerably with the two criminal prosecutions. He cited case law, which held that even if documents themselves aren’t criminal, their connection to each other could be. He said if Clark turns all of them over, that could be incriminating since it would reveal the full extent of what he relied upon. Similarly, if Clark didn’t have any documents and said so, that would be incriminating.
Hamilton P. Fox III of the ODC argued that Clark only needed to turn over exculpatory documents, not incriminating ones. That did not persuade the judges, who asked Fox several skeptical questions.
D.C. Court of Appeals Justice John P. Howard III asked Fox, “You got at least two criminal cases that are addressing those same facts now, what is the harm in waiting for that to resolve and letting that litigate out, and then bringing in the evidence that should be abundantly available to you?”
Fox repeated, “We have not asked for incriminating — referring specifically to the category just talked about. We haven’t asked for incriminating documents, we’ve asked for exculpatory.”
Burnham pointed out that ODC said it was ready to go ahead with the disciplinary trial back in January even if unable to obtain the documents, which he said was evidence they weren’t crucial to the case. He noted that the ODC could have gotten the documents from the DOJ but hadn’t bothered, to his knowledge.
Clark’s disciplinary trial is scheduled for March 26. ODC has fought Clark’s attempts to postpone it until after the two criminal cases are conducted. The Harr Law Firm, which handles cases that often have both civil and criminal components, explained in an article why civil cases are usually postponed until criminal trials have finished.
“This is because much evidence in a criminal trial will remain confidential until a verdict is given, and you will likely find it difficult to pursue a civil lawsuit when evidence of the harm done to you is being kept under lock and key,” the firm said in a post about the timing of the two different types of cases.
Clark has spent over a million dollars on attorneys in the three cases and has raised $77,365 for his defense fund. The pleadings in Clark’s case and those to disbar Rudy Giuliani and other election attorneys connected to Trump are located here.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to rachel.r.alexander@gmail.com.
