Jeffrey Clark eyes 5th Amendment to keep from testifying about efforts to help Trump overturn election

The House select committee investigating the Jan. 6 Capitol insurrection voted unanimously on Wednesday evening to advance a criminal contempt referral for Jeffrey Clark, a former Justice Department official who assisted Donald Trump’s efforts to overturn the results of the 2020 election, for defying a congressional subpoena.

Seeking testimony and documents related to the Jan. 6 insurrection, the select committee subpoenaed Clark in October, but when he appeared before the panel for a deposition on Nov. 5, he declined to answer substantive questions, citing various claims of legal privilege.

"He chose this path. He knew what consequences he might face if he did so,” committee Chair Bennie Thompson, D-Miss., said in his opening remarks prior to Wednesday’s vote. “This committee and this House must insist on accountability in the face of that sort of defiance. We must honor the oath we took to support and defend the Constitution."

But even as the committee moved to hold Clark accountable, Thompson noted that he’d agreed to give Clark another chance to testify on Saturday after receiving a letter from his attorney stating that he intends to assert his Fifth Amendment privilege against self-incrimination. Though Thompson called the letter “a last-ditch attempt to delay the select committee’s proceedings,” he said he was willing to convene another deposition on Saturday, where Clark can assert his Fifth Amendment privilege “on a question-by-question basis.”

Clark may have temporarily delayed the process of being referred to the Justice Department for criminal prosecution; the House will now wait to hold a full vote on the matter until after his last-minute deposition this weekend. But Wednesday’s vote marked the second time the select committee has moved to advance criminal penalties against one of Trump’s allies for refusing to cooperate with its investigation.

The first was Steve Bannon, Trump’s former chief strategist, who was indicted by a federal grand jury on two criminal counts less than a month after the House of Representatives voted to hold him in contempt for failing to cooperate with his own subpoena from the select committee. Bannon has pleaded not guilty to the charges, which carry a combined penalty of up to two years in prison and $200,000 in fines.

The select committee is interested in hearing from Bannon and Clark because of reports that they played key behind-the-scenes roles in the planning leading up to Jan. 6, when hundreds of Trump’s supporters violently stormed the U.S. Capitol and delayed Congress’s certification of Joe Biden’s electoral victory. Unlike Bannon — who rose to national prominence as one of the primary architects behind Trump’s successful 2016 campaign, became a White House chief strategist early in the Trump administration and has remained in the public eye as the host of a popular pro-Trump podcast — Clark was largely unknown outside the Justice Department until earlier this year.

It wasn’t until late January, weeks after the deadly attack on the Capitol, that reports of Clark’s involvement in Trump’s effort to overturn the results of the 2020 election first came to light.

A report in the New York Times had cited revelations by four unnamed former Trump officials of how the then president had conspired with Clark during his final weeks in the White House to try to upend the election. Trump, according to the article, had even considered installing him as acting attorney general, prompting several top aides to threaten to resign in protest.

In October, the Senate Judiciary Committee corroborated the Times’s reporting in a lengthy interim report that offered new details about Clark’s role in Trump’s effort to pressure the Justice Department to overturn the election.

The report was produced by the committee’s Democratic majority and was based on documents, email records and interviews with other former Justice Department officials, including Jeffrey Rosen, the acting attorney general during Trump’s final month in office, and acting Deputy Attorney General Richard Donoghue.

According to the report, Clark, who served as head of the DOJ’s Environmental and Natural Resources Division, told officials he was introduced to the then president by Rep. Scott Perry, R-Pa., who led the objection to counting his state’s electoral votes on the House floor following the Jan. 6 insurrection.

Unbeknownst to DOJ leadership at the time, the report said that Clark met with Trump at the White House in late December of last year and then began pushing the department to investigate unsubstantiated allegations of election fraud. Before stepping down as attorney general in mid-December, William Barr stated publicly that federal authorities had found no evidence of widespread voter fraud “on a scale that could have affected a different outcome in the election.”

According to the Senate Judiciary Committee’s report, Clark urged his superiors to send a letter to elected officials in Georgia and other contested states falsely stating that the department was investigating allegations of voter fraud in their states and encouraging them to delay certification of their election results. Rosen, who became acting attorney general after Barr’s departure, also told senators that Clark wanted him to hold a press conference announcing that “there was corruption” in the election, despite evidence to the contrary.

Rosen described multiple conversations with Clark in the days before Jan. 6 during which Clark revealed he’d had further contact with Trump after their initial meeting at the White House and had secretly interviewed a witness in connection with an already debunked election fraud allegation in Georgia. In a particularly tense confrontation on Jan. 2, Rosen said, Clark tried to coerce him to send the letter to Georgia officials by suggesting that Trump could fire Rosen and then saying he would not accept an offer to replace him if the acting attorney general agreed to send the letter. Rosen refused.

Trump confirmed that he was considering replacing Rosen with Clark at a meeting in the Oval Office the next day. Rosen recalled the president telling him, “One thing we know is you, Rosen, aren’t going to do anything to overturn the election.”

Ultimately, Trump agreed to back off the plan to use the Justice Department to pressure state election officials after several of the senior DOJ leaders, along with White House counsel Pat Cipollone and his top deputy, Patrick Philbin, threatened to resign in protest.

A separate report produced by the Senate Judiciary Committee’s Republican minority downplayed Trump’s efforts. “Based on the available evidence and witness testimony, President Trump’s actions were consistent with his responsibilities as President to faithfully execute the law and oversee the Executive Branch,” the report concluded.

Clark’s attorney, Harry MacDougald, did not respond to a request from Yahoo News for comment.

The Jan. 6 select committee cited the Senate report in a letter it sent to Clark last month notifying him of the subpoena seeking his testimony and documents related to what it described as “credible evidence that you attempted to involve the Department of Justice in the efforts to interrupt the peaceful transfer of power.”

“The Select Committee needs to understand all the details about efforts inside the previous administration to delay the certification of the 2020 election and amplify misinformation about the election results,” Thompson said in a statement announcing Clark’s subpoena. “We need to understand Mr. Clark’s role in these efforts at the Justice Department and learn who was involved across the administration. The Select Committee expects Mr. Clark to cooperate fully with our investigation.”

Clark and his attorney appeared before the panel on Nov. 5 but, according to a deposition transcript released earlier this week, declined to answer substantive questions or produce any documents, citing various claims of legal privilege. The transcript shows that the committee noted Clark’s former supervisors at the Justice Department had already appeared before the panel and that his refusal to cooperate was “in stark contrast.”

Trump has attempted to assert executive privilege over documents and interviews sought by the select committee as part of its investigation into his activities leading up to and during the Jan. 6 attack on Congress.

President Biden has thus far waived executive privilege for records relevant to the committee’s investigation, and a federal judge in Washington, D.C., has ruled that Biden’s authority in this matter supersedes Trump’s. But Trump has continued to fight the House probe in court. On Tuesday morning, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in the former president’s appeal to keep his White House records secret.

Clark’s latest move presents a new challenge for the select committee, but the Fifth Amendment is not a blanket shield against the entire investigation. The committee leadership has made clear that it will move forward with the contempt process if Clark continues to stonewall or use the Fifth Amendment in ways it deems illegitimate.

“We just want the facts, and we need witnesses to cooperate with the legal obligation and provide us with information about what led to the Jan. 6 attack,” Thompson said Wednesday. “Mr. Clark still has that opportunity, and I hope he takes advantage of it, but we will not allow anyone to run out the clock.”