If there was a single moment when President Donald Trump’s effort to remain in power and unlawfully overturn the results of the 2020 presidential election hung in the balance, it appears to have been not sometime on Jan. 6, 2021, as a violent mob disrupted the joint congressional session while it formally certified Joe Biden’s victory, but three days earlier, on Jan. 3.
Clark’s efforts are an ominous reminder of the dangers that inhere when lawyers seek to rationalize the illegitimate.
We’ve known for a while about the tense Oval Office meeting late that Sunday afternoon in which senior Justice Department and White House lawyers met with Trump to discuss whether any legal pathways remained available for contesting the election results. And we’ve also long known the result: that the entire senior leadership of the Justice Department threatened to resign en masse if Trump named Jeffrey Clark the new acting attorney general, after which Clark would have invited some of the key states to send alternative slates of presidential electors to Washington.
The House Jan. 6 committee is holding its third public hearing on Thursday, June 16 at 1 p.m. ET. Get expert analysis in real-time on our liveblog at msnbc.com/jan6hearings.
But it’s worth stressing what we only know that now, thanks to the House Select January 6 Committee, as Michael Kranish laid out on Tuesday in The Washington Post. When The New York Times first reported about the meeting in January 2021, Clark — then the attorney general in charge of the environmental and natural resources division — said only that he was part of a “candid discussion of options and pros and cons with the president.” He specifically denied that he had proposed that Trump fire Jeffrey Rosen (then the acting attorney general). And he criticized others in the meeting for talking publicly and “distorting” the discussion.
Those same participants have now given sworn testimony to the Jan. 6 committee that makes Clark look far more complicit — and that underscores just how close he came to succeeding. Apparently at the behest of Rep. Scott Perry, R-Pa., Clark first met with Trump right around Christmas — a massive breach of protocol given that he had neither sought nor received authorization from his superiors at the Justice Department. Although the details of that meeting remain secret, on Dec. 27 Trump complained to Rosen in a phone call that the Justice Department wasn’t doing enough to investigate claims of voter fraud, and invoked his earlier meeting with Clark.
One day later, Clark circulated a now-infamous draft letter, putatively on behalf of the Justice Department, that would have given the department’s imprimatur to bogus claims of fraud in Georgia and invited the Georgia state government to consider certifying an alternate slate of electors — a procedure that could have provided a fig leaf for the rejection of Georgia’s Biden electors at the joint session on Jan. 6. Rosen and Richard Donoghue, the acting deputy attorney general, refused to sign Clark’s letter. After a brief, tense meeting among the three lawyers, the matter appeared to be closed.
But Clark apparently once again met with Trump without receiving permission from (or even informing) Rosen or Donoghue, coming back from that meeting with an ultimatum for Rosen on Saturday, Jan. 2: Sign the Georgia letter or be fired. When Rosen refused and demanded a sit-down with the president (noting, quite correctly, that Clark couldn’t fire him), the tables were set for the high-stakes meeting on Jan. 3.
It’s the machinations of lawyers — the rationalization of the illegitimate — that is the true enemy to justice.
We’ve known for some time that Trump was eventually talked out of Clark’s plan by the other Justice Department lawyers, who told the president that they would all resign if he went through with it. But the Jan. 6 committee has also uncovered that, even after Trump gave in on Clark’s initial plan, Clark proposed an alternative: that Steve Engel, assistant attorney general for the office of legal counsel, draft a legal opinion concluding that Vice President Mike Pence could unilaterally reject electors from states in which there had been (completely unsubstantiated) allegations of fraud. “That’s an absurd idea,” Engel told the Jan. 6 committee he responded, noting that it wasn’t the Justice Department’s job to intervene in presidential elections.
From the Jan. 6 committee’s perspective, the million-dollar question arising from the Clark affair is where his plan came from. Did he come up with it on his own, or was it part of a broader scheme, coordinated by others, to manipulate the results of the 2020 presidential election? But whatever the answer, Clark’s behavior looks that much worse the more that we learn about it. Together with the efforts of disgraced former law professor John Eastman, who repeatedly tried to convince Pence that he had the authority to frustrate the certification of then-President-elect Biden’s victory at the Jan. 6 Joint Session, Clark’s efforts are an ominous reminder of the dangers that inhere when lawyers seek to rationalize the illegitimate.
Lawyers are not immune from legal consequences for their misconduct. Just last week, for instance, the D.C. Bar announced that it was filing ethics charges against Rudy Giuliani for pushing false voter-fraud claims about the 2020 election. Clark and Eastman may be in criminal — and not just ethical — peril: In a video posted online Monday by the Jan. 6 committee, Trump White House lawyer Eric Herschmann testified that he told Eastman on Jan. 7 to “get a great f’ing criminal defense lawyer; you’re going to need it.” Indeed, one of the military tribunals convened by the United States after World War II tried 16 senior lawyers in the Nazi government, 10 of whom were found guilty for playing an instrumental role in the war crimes and crimes against humanity that their legal advice helped to rationalize. Perhaps one of the lessons of Jan. 6 is that we don’t do enough to hold government lawyers accountable when their conduct proposes or facilitates unlawful government behavior, a common charge leveled against Bush administration lawyers after and in light of revelations about the torture of non-citizens detained as “enemy combatants.” And yet, if Clark’s and Eastman’s efforts came to naught, it was largely because of other lawyers — Rosen, Donoghue and Engel, in Clark’s case; and Greg Jacob and former federal judge J. Michael Luttig, in Eastman’s. Increasingly, the behind-the-scenes story of how the Trump White House tried to steal the 2020 election is a battle between two sets of legal advisers. Fortunately for all of us, the right ones prevailed. One of William Shakespeare’s most well-known lines is spoken by Dick the Butcher in Act IV of Henry VI, Part 2: “The first thing we do, let’s kill all the lawyers.” There’s a rich debate over exactly what Dick means by that quip. One reading of the line is that lawyers are a bulwark against tyranny — and so a key precursor to the seizure of power by illegitimate forces is the elimination of the lawyers who might stand in the way. An alternative, but no less prevalent, reading is that lawyers stand in the way of reform — by insulating the wealthy and powerful. On that view, it’s the machinations of lawyers — the rationalization of the illegitimate — that is the true enemy to justice. The more we learn about Jan. 3, 2021, the more it appears that the lawyers in this case happened to “kill” each other — producing a stalemate that prevented Trump from pursuing any of the more direct paths open to him to try to illegitimately remain in power. We were lucky this time. But we ought to think carefully, both as a profession and as a polity, about the lessons this has for the kinds of lawyers we allow in government leadership positions going forward — and the very real dangers of elevating those for whom the only principle that matters is winning.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast). 
