In the days before the Capitol breach, Clark played a key role in President Donald Trump’s efforts to challenge the election results, meeting with the president outside the chain of command and pushing for a letter to state officials that his direct bosses did not want to send. The committee subpoenaed Clark to describe his conversations with Trump and other actions in that time frame.
Clark struck an agreement with the committee to be deposed for a second time Saturday, after initially refusing to answer many questions in an earlier session. Clark’s lawyer, however, has signaled he will probably assert his Fifth Amendment right not to incriminate himself when he is questioned again.
On Friday evening, the committee said that due to a medical condition, the Clark session would be postponed until Dec. 16.
Clark’s touch-and-go talks are the latest example of the ways in which the insurrection at the Capitol has tested long-standing guardrails within the government, as Republicans and Democrats spar over the violent attempt to thwart the outcome of a presidential election.
Last month, the Justice Department filed contempt-of-Congress charges against former Trump strategist Stephen K. Bannon, who refused to meet with the committee or provide any documents in response to a congressional subpoena.
Such charges are extremely rare, and even when filed are often whittled away by subsequent court decisions. While many Democrats saw the Bannon indictment as a necessary step to protect democracy, Bannon called the case a “misdemeanor from hell” that Democrats would come to regret.
A lawyer for Clark did not immediately respond to a request for comment.
The legal fights surrounding the Jan. 6 committee subpoenas of Bannon, Clark and others underscore the challenges facing Attorney General Merrick Garland, whom President Biden picked as an antidote to what he saw as the intense politicization of the Justice Department under Trump.
While both Bannon and Clark have sought to avoid answering committee questions by claiming their communications with Trump were privileged, Bannon’s case is different from Clark’s in key ways: Bannon was not a government employee during the time period in question, he refused to meet with the panel at all, and he is not a lawyer.
Still, Bannon’s indictment was a potent warning to other recalcitrant witnesses that if they defy the committee, they may become criminal defendants. Trump chief of staff Mark Meadows subsequently signaled a greater willingness to talk to the panel, although specifics are still unclear.
Stanley Brand, a former House lawyer who has spent decades handling cases involving congressional witnesses, described the threat of indictment as a blunt instrument — with important limitations for lawmakers who ultimately are trying to get hold of information that so far has been off-limits to them.
“It’s a criminal statute, so it punishes recalcitrance, but it doesn’t produce the document,” said Brand, who is representing one of Trump’s former aides, Dan Scavino, before the committee. “You can have the satisfaction of sending someone to jail but you may not get the information you’re seeking.”
Invoking the Fifth Amendment right against self-incrimination could be devastating to Clark’s legal career and public reputation. But he would hardly be the first former government official to use that option in response to congressional questions.
Rather than pursue contempt charges against Clark the way it has against Bannon, the committee could grant Clark immunity in exchange for testimony. But in the past, some people given congressional immunity have still faced criminal prosecutions.
Brand, the former House lawyer, said all the legal fights surrounding Jan. 6 committee witnesses may be undercut by a separate problem. When the Democratic-controlled House formed the committee, the resolution envisioned a panel of eight Democrats and five Republicans. But GOP and Democratic leaders fought over which Republicans would participate, and ultimately only two Republicans joined, turning an envisioned panel of 13 into nine. Clark’s lawyer has already raised this issue in challenging the validity of the panel’s demands.
Ultimately, it may not matter. But back in 1949, the Supreme Court tossed out a perjury conviction against a witness in a congressional hearing about communism, finding that at the time, the committee was not a “competent tribunal” because it lacked a quorum.
Brand, who was counsel for the chamber under House Speaker Thomas P. “Tip” O’Neill Jr. (D-Mass.), called the makeup of the committee a “sleeping procedural issue” looming over whatever court fights arise out of the committee’s work.
He also said it seems reasonable for Clark to at least consider taking the Fifth.
“You have a Justice Department inquiry with 650 defendants, a grand jury and a warehouse full of evidence,” he said, referring to the wide-ranging criminal prosecutions of people who allegedly broke the law in breaching the U.S. Capitol. “You’re at risk if you’re talking under oath, no matter who you are.”
Liberal legal experts and pundits pushed hard for the Justice Department to indict Bannon after the House voted to refer him for prosecution. Many complained that it took several weeks for a grand jury to do so, even as they reluctantly acknowledged the potential political pitfalls.
Garland “clearly knew that many people he respects, including me, were growing impatient with what we saw as the glacial pace of the process leading to this indictment,” longtime Harvard law professor Lawrence Tribe, who taught the future judge and attorney general, wrote in an email. “But he no doubt also knew that a number of experienced former federal prosecutors kept insisting publicly that several weeks was to be expected in a case of this magnitude and sensitivity.”
Brand said it was a momentous decision for the Justice Department under Garland to abandon decades of department practice of supporting current or former government officials who assert executive privilege.
“There’s no insurrection exception in the Constitution with respect to separation of powers, and for 40 years the Justice Department has repeatedly, relentlessly stated that you cannot apply the criminal statute to executive branch officials who are under a claim of privilege,” Brand said. “If you want to bloviate about the rule of law, then you have to apply it evenly.”
The Justice Department has said the “extraordinary circumstances” of what happened within the Trump administration in late 2020 and early 2021 call for an exception to be made to the department’s long-standing practice of asserting executive privilege.
Garland has insisted to lawmakers he will only “apply the facts and the law.”
Thomas DiBiagio, a former federal prosecutor who served as a U.S. Attorney during the administration of President George W. Bush, said Garland “has been right to acknowledge there has been the exercise of very poor judgment, and when you have a political taint at the Justice Department, it’s like a drop of ink in a glass of water — it’s really bad and it can cloud everything.”
But he said the intensity of the political fights surrounding the department has changed since Garland’s earlier days as a prosecutor — shifting the climate in which he must operate.
“Now you have a level of criticism which is dramatically different,” he said. “The Washington game has changed, and they’ve dragged the Justice Department into it.”
DiBiagio, who teaches at Washington and Lee University School of Law, said Garland’s next steps will be difficult, but important.
“When the criticism comes, the department has to clearly explain the allegations, the facts and the law. And you’ve got to send a signal too, that you support the actual DOJ lawyers handling the cases. When it gets really complex and nasty, are you going to be out there defending the department, or are you going to send someone else out there? It’s really important that the leadership steps up and pushes back against that stuff.”