The Federalist
In a superseding indictment filed last week against former President Donald Trump, Special Counsel Jack Smith removed references to former United States Assistant Attorney General Jeffrey Clark. Clark’s lawyers argue it’s another reason Clark shouldn’t lose his law license.
On Aug. 1, a disciplinary panel of the District of Columbia Bar had recommended a suspension of at least two years for Clark.
The disciplinary proceedings arose in the wake of the 2020 presidential election. Clark recommended sending an advisory to Georgia in light of Trump’s claims of election fraud and irregularities, such as unconstitutional Covid-related changes to election law not adopted by state legislators. Clark proposed that the Justice Department send a letter, the draft of which was never even sent, to Georgia’s top three senior statewide elected officials suggesting the state legislature convene in a special session to investigate for itself potential irregularities in the 2020 election.
The implications of the panel recommendation are profoundly troubling. A president — the head of the executive branch — relies on advice from many people within his administration’s orbit. The Supreme Court ruled in Trump v. United States last month that discussions between the president and his Justice Department are off limits to Special Counsel Smith in terms of his indictment of Trump.
Yet the D.C. Bar wants to use these same internal discussions between Trump, Clark, and other executive branch officials to punish Clark. It is an extraordinary intrusion for a local disciplinary body to stick its nose into the advice that an executive branch lawyer provided to a president. Executive privilege and the Trump v. United States exclusionary rule exist to preserve the ability of a president to receive frank counsel from advisers; yet, the D.C. Bar’s actions chill such counsel, thus seriously harming the presidency and our country.
Should Smith be Disciplined?
Trump is not the only president whose officials could face discipline using the panel’s newfound approach in this, the first case of its kind. As the panel noted, Clark never sent his proposed letter. The case involved internal Justice Department deliberations. Smith, by contrast, pursued and obtained an indictment against Trump.
The Supreme Court effectively struck some portions of the indictment (such as Trump’s consultations with the Justice Department, including Clark) because it concerned acts for which a president is absolutely immune. Smith violated the Constitution by indicting Trump for some acts for which some form of presidential immunity precludes indictment. Should Smith and his cohorts face discipline by the bars in which they are members? Did they act recklessly? Their actions, after all, resulted in a constitutionally defective indictment and the violation of Trump’s constitutional rights. And they did so in a way that could well affect the outcome of the 2024 presidential election.
Smith’s recent decision to remove Clark from his new superseding indictment filed against Trump does not change the analysis because Smith’s prior actions had already caused harm to Clark and to President Trump.
Moreover, Smith did not even hold the authority to indict Trump. U.S. District Judge Aileen Cannon, who presided over Trump’s indictment for the alleged mishandling of classified information in the Southern District of Florida, ruled that Smith’s appointment was unconstitutional. Judge Cannon determined that Smith’s position is equivalent to that of a U.S. attorney. As such, he required Senate confirmation, and Garland’s decision to pluck Smith from the Hague to prosecute Trump lacked statutory authority.
Smith is appealing. The Eleventh Circuit Court of Appeals, and perhaps the Supreme Court, will ultimately decide the question of the validity of Smith’s appointment. Suppose that Jack Smith loses. That is, suppose the Supreme Court rightfully concludes that he acted without any legal authority. Should he and his team face bar discipline? If courts rule his appointment invalid, that would mean that Smith and his team submitted numerous court filings without legal authority. They in turn caused the judiciary to expend years of finite resources dealing with lawyers who, if the courts so rule, never had any business appearing in those courts in the first place. Would these actions amount to recklessness by Smith and his team?
It is highly unlikely that the D.C. Bar, a left-leaning institution, would punish Smith and his team. Laughably, the disciplinary counsel who sought Clark’s disbarment claimed that Clark’s actions had constituted the second greatest threat to democracy in our history, only behind the Civil War. While the panel rejected this deranged statement, it still suggested the application of an absurd penalty.
Clark engaged in internal deliberations with the president and other Justice Department officials. He made a proposal to send a letter merely calling for more state investigations by Georgia. No harm came from an unsent letter. Much harm, by contrast, has indisputably come from the actions of Smith and other Justice Department officials serving under President Joe Biden and Vice President Kamala Harris.
Interference and Partisanship
Disciplinary bodies should not interfere with the advice that executive branch officials provide to presidents, just as these groups should not interfere with the advice that congressional aides provide to U.S. representatives or senators.
Ultimately, our republic entrusts the president to lead the executive branch; he can accept or reject the advice of aides. Neither Trump nor his Justice Department ever complained to the D.C. Bar about Clark’s legal advice, and Trump left Clark in place as the only assistant attorney general running two of the Justice Department’s seven litigating divisions simultaneously. The case against Clark instead began with a complaint by partisan Sen. Dick Durbin, D-Ill., who had no personal knowledge of anything that had occurred inside the executive branch.
The solution is not to chill unpopular advice through future bar discipline, especially where no one with first-hand knowledge had even complained. That scheme weakens the presidency and, if applied to legislative aides, Congress, or if applied to law clerks or judges, the judiciary. That chilling effect is far more detrimental to the nation than any advice that one lawyer might provide, and we must categorically reject it.
Mike Davis is the Founder and President of the Article III Project.
