Three of America’s former top law enforcement officials are sounding the alarm: the D.C. Bar’s crusade against Jeff Clark threatens to chill every lawyer who dares serve in a future Republican administration.
Bill Barr, Jeff Sessions, and Michael Mukasey filed an amicus brief Monday backing the Justice Department’s lawsuit against D.C. Disciplinary Counsel Hamilton Fox III. Their message was blunt. The Bar’s years-long campaign to strip Clark of his law license for internal legal advice he gave President Trump after the 2020 election amounts to nothing less than a “disciplinary jihad.”
“Even if Mr. Clark is cleared of all allegations,” the former attorneys general wrote, “the Defendants’ ruination of his name, damage to his career, and, most important, interference with DOJ’s internal operations all cast a chilling pall over how Department lawyers do their jobs.”
Clark served as an Assistant Attorney General under Trump. The D.C. Bar’s case against him stems from a draft letter he prepared for Georgia officials noting the DOJ “identified significant concerns that may have impacted the outcome of the election in multiple States.” Clark never sent the letter. His superiors objected, Trump pivoted, and the matter ended internally.
But that wasn’t enough for the D.C. Bar. They launched proceedings to take Clark’s license anyway.
The Justice Department sued Fox and related entities earlier this year, calling it an “unlawful prosecution” targeting Clark “based on internal deliberations relating to potential fraud” in the 2020 contest.
“D.C. disciplinary authorities may not punish a United States official for disagreeing with a superior or coworker or for sharing an opinion just because those disciplinary authorities disagree with it,” the DOJ complaint states.
The three former AGs made clear they didn’t necessarily agree with Clark’s legal strategy at the time. That’s not the point. What matters is who gets to discipline senior DOJ lawyers for confidential internal deliberations.
“We believe that only DOJ and, if necessary, the President, may discipline or punish a senior DOJ lawyer for privileged and confidential internal deliberations, such as providing legal advice, weighing the credibility and importance of evidence, and recommending a course of action,” the brief reads. “That’s especially so here where the advice and deliberations concerned matters of the highest importance and sensitivity.”
The consequences extend far beyond one man’s law license. Agency attorneys will “self-censor” if they believe their internal legal advice could land them before a hostile bar association, the former AGs warned. They blasted the defendants’ “naive” arguments “that in a fast moving, high-pressure environment what is ‘fact’ and what is ‘true’ will be so obvious to all honest lawyers as to preclude discussion or intense debate.”
The brief cuts to a constitutional core: separation of powers.
“Allowing a D.C. professional licensing body to investigate, prosecute, or discipline DOJ attorneys for such internal deliberative actions obviously injures the Department by subjecting it to oversight from local authorities not under Presidential control,” the filing states. “This intrusion violates the Separation of Powers doctrine and is precluded by the McDade Amendment.”
D.C. District Senior Judge Richard Leon is presiding over United States v. Fox. The Bush 43 appointee will decide whether local bar authorities can police the internal advice executive branch lawyers give their superiors.
For conservative lawyers considering government service, the stakes couldn’t be clearer. Give advice the wrong people don’t like, and they’ll come for your livelihood years later.
