Will Chamberlain: The Persecution of Jeffrey Clark
Prominent liberal legal analysts portray Clark as a desperate gambler, hoping to get away with nefarious behavior. Harry Litman, the law professor and legal affairs columnist for the Los Angeles Times, tweeted on Tuesday that Clark was “playing a very high-stakes game” and “could easily lose his law license” as a result of the actions of the January 6th committee. MSNBC legal analyst Glenn Kirschner described Clark as “gambling on being able to go in with a lot of bluff and bluster and… play privileges and walk out unscathed.”
The truth, however, is that Clark is the victim of an arrogant, lawless, partisan, and hyper-aggressive select committee. They have already brought charges against Steven Bannon for contempt of Congress—the first time that anyone has been indicted for that crime in forty years.
But the position that the committee is putting Jeff Clark in is even more appalling and contemptible than that of Bannon. As a lawyer and former DOJ official, Clark has professional ethical obligations to protect lawful privileges, such as attorney-client privilege and executive privilege.
Right now, Clark is being threatened with prosecution for being too reticent to answer the committee’s questions. But, if he were to answer too fulsomely, and a court were to later find that the contents of his testimony should have been protected by executive privilege, that bell can’t be un-rung, and Clark could face discipline from the bar. No congressional committee should make an executive branch employee choose between the loss of his bar license on the one hand and a criminal contempt charge on the other.
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Back in July, House Minority Leader Kevin McCarthy (R-CA) selected Reps. Jim Jordan of Ohio and Jim Banks of Indiana to serve as the minority members of the committee—and House Speaker Pelosi (D-CA) simply refused to seat them. Without a ranking minority member, the committee has no lawful basis on which to depose anyone. It can hold hearings and invite witnesses to voluntarily testify, but its depositions should be seen as unlawful.
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