As the Jan. 6 select committee investigation gathers momentum, Donald Trump has gotten several cronies to refuse to testify by invoking “executive privilege.” That’s absurd on its face: Much of the information Trump wants to keep buried doesn’t relate to the office of the presidency, but rather to his incitement of mob violence to remain president illegitimately.
But there’s something uniquely troubling about the latest turn in this saga. Trump might now succeed, at least temporarily, in using this tactic to muzzle testimony from someone who apparently communicated personally and directly with Trump about some of his most flagrantly corrupt efforts to overturn our political order.
We’re talking about Jeffrey Clark, the former Justice Department official who reportedly launched various efforts to conscript the department into helping Trump subvert the election. The committee subpoenaed Clark, but he has rebuffed questions, citing Trump’s effort to assert executive privilege to block Congress from obtaining internal information.
This week, the select committee will vote to hold Clark in criminal contempt. If and when the full House follows, the matter will be referred to the Justice Department for potential prosecution. But then the matter will likely land in the courts, perhaps for a long time.
To see why this is so perverse, let’s dig into Clark’s involvement. It’s detailed in a Senate Judiciary Committee report examining Trump’s pressure on the Justice Department, which relied on testimony from another top official, then-acting attorney general Jeffrey Rosen.
That pressure constitutes the beating heart of Trump’s coup attempt. The report found that Trump extensively pressured department leaders to take official action to portray his loss as fraudulent, via investigations, lawsuits and public statements.
The idea was apparently to create a fake rationale for Trump’s vice president to simply declare Joe Biden’s electors invalid, after which friendly states might send alternate electors. That plot was outlined in the now-notorious Trump coup memo.
But the role of Clark was particularly troubling. The report found that Trump and Clark personally communicated before Clark undertook extraordinary actions on Trump’s behalf.
These included an effort to send official Justice Department letters to swing states declaring that the department was examining election problems and advising state legislators to consider appointing new electors. That was thwarted by Rosen and other officials, but it was an extraordinary abuse of power.
Subsequent to that, Clark reportedly informed Rosen that Trump had offered to install him in Rosen’s place, presumably amid Trump’s anger over Rosen’s rebuffing of his corrupt designs.
The question is, to what degree did Trump and Clark elaborate this scheme in their own conversations?
Rep. Jamie Raskin (D-Md.), a member of the select committee, noted that Clark could testify about his conversations throughout that time. This might illuminate what Trump directed Clark to do, or understood him to be doing, on his behalf.
“I’m very interested in what kind of plans he was advancing to thwart the presidential election and who he had talked to about those plans,” Raskin told me.
Glenn Kirschner, a former federal prosecutor, told me that Clark could speak to potentially criminal conduct by Trump, by testifying about “Trump conspiring with Department of Justice officials to undermine our free and fair elections.”
That may have run afoul of the law, Kirschner notes, citing criminal conspiracy to commit an offense against the United States.
That offense, he said, could include seditious conspiracy or attempted coercion of government employees into carrying out political activity. Constitutional scholar Laurence Tribe has also detailed how Trump’s pressure on the Justice Department could constitute such crimes.
Clark might be able to "clearly implicate Trump in any number of conspiratorial crimes,” Kirschner told me, adding that in this case, executive privilege is being asserted to “cover up potentially criminal conduct.”
But Clark has now refused to testify, citing Trump’s executive privilege claim. And we don’t know how long it will take to get Clark’s testimony, if ever. This could remain bogged down in court and could end up before the Supreme Court.
Raskin acknowledged this is cause for worry. “Their goal is obviously to run out the clock before the American people get the truth,” Raskin told me. “We’re in a race against the clock here.”
As it is, the executive privilege debate raises important questions. Biden, as sitting president, has declined Trump’s requests for its invocation. Yet Trump insists he can assert it as a former president, to keep buried information to thwart an inquiry — into an effort to disrupt a presidential election’s conclusion — that is obviously very much in the national interest.
What’s more, former officials such as Clark — and Trump adviser Stephen K. Bannon, who has been indicted — are insisting this should allow them to defy congressional subpoenas.
“We believe that categorical defiance of congressional subpoenas are a major threat to the rule of law,” Raskin told me. “We will not tolerate people simply declaring themselves above the law.”
Executive privilege can be legitimately invoked to shield particularly sensitive presidential communications. But in this case, what might get shielded from view are Trump’s potential conversations about corrupting law enforcement into a broad plot to thwart a legitimately elected government from taking over.
All this will ultimately be sorted out in court. But if that stands, the implications are pretty unsettling.