Published by The Lawfare Institute
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Editor’s note: The following is a dispatch from a hearing held on Sept. 18, the latest episode in Lawfare’s series of dispatches on the Fulton County district attorney’s criminal case against former President Donald Trump and 18 others.
It is not yet 8 a.m. in a hallway inside the federal courthouse in Atlanta, Georgia, and Donald Trump’s attorney is talking South American alligatoridae.
The attorney is Steve Sadow, a veteran Atlanta-area defense attorney whom the former president hired recently to fend off criminal charges in Fulton County related to alleged interference in the 2020 election in Georgia. The alligatorid in question is caiman—specifically, the one he is wearing on his feet.
Sadow is here, as I am, waiting to get a seat in court for a hearing on whether Trump’s co-defendant, Jeffrey Clark, should be allowed to move his criminal case from state court to federal court. He may not be thrilled to find himself waiting among a gaggle of reporters eager to grill him about his client’s legal woes. Instead of letting reporters pepper him with questions, he makes clear that he is not in the mood to talk about legal strategy on the record, at least not this early in the morning. And so the conversation shifts to crocodilian reptiles.
Sadow, as it turns out, is the type of Southern defense attorney who prefers to pair his suits with cowboy boots. It’s a thing. Earlier this month, he showed up to Mark Meadows’s removal hearing clad in a pair of ostrich-leather boots. But today, he’s sporting a different pair. The shiny, black leather, he tells us, is made from the skin of Caiman alligators (Order: Crocodilia. Family: Alligatoridae. Subfamily: Caimaninae.)
That pretty well shuts everyone up.
Except, that is, the marshal, who informs Sadow that he can’t bring his smartwatch into the court and needs to go lock it up. Sadow is annoyed but goes downstairs to get rid of his watch. When he returns, he says to the marshal: “No watch. No phone. Next time, I’ll bring my shoe phone.”
The press corps is left to imagine Maxwell Smart gutting a poor caiman to make a cowboy boot phone out of its hide.
All of which has exactly nothing to do with today’s hearing, which is not even about Sadow’s client, let alone his feet or their coverings.
What this hearing is about is a man who probably isn’t wearing caiman boots right now, though we wouldn’t know because he isn’t present, in any event. As you might recall from Mark Meadows’s removal hearing earlier this month, Clark—caiman boots or not—needs to establish three things to get his case into federal court. The first, that he was a federal officer at the time of the alleged offense, is not in dispute: Clark served as the acting assistant attorney general in the Justice Department’s Civil Division at the time of the alleged conduct. The second is that Clark did the alleged conduct under “color of office.” The third is that he has a colorable federal defense against the charges.
At 9:43 a.m., it’s “All rise!” time, and Judge Steve C. Jones sweeps into the room, resplendent in his robes, and finds his seat behind the bench.
After welcoming the parties and spectators assembled in his courtroom with a friendly “Good morning, y’all,” Judge Jones explains that he intends to provide both the prosecution and the defense with an opportunity to present opening statements. Jones will then allow both sides to present witness testimony or other evidence related to the removal motion.
Responding to these introductory remarks, Clark’s attorney, Harry MacDougald, rises to his feet. “I am not gonna be putting Mr. Clark on the stand, your honor,” he announces. Instead, MacDougald says that he would prefer to spend some time presenting arguments about Clark’s claim for removal.
But before MacDougald can get started, Fulton County special prosecutor Anna Cross jumps up to address the fact that Clark, the defendant in the case, is conspicuously absent. She notes that neither Clark nor his attorneys have filed a written waiver to excuse his appearance at today’s hearing.
Turning to MacDougald, Jones asks for an explanation as to why he hasn’t filed a waiver of Clark’s appearance.
“My bad, I didn’t know I needed to do it,” MacDougald replies.
He explains that although the underlying action in Fulton County is a criminal matter, this hearing on removal is technically civil in nature. As such, MacDougald contends, there’s no rule that requires Clark to be present in court today. Still, MacDougald promises Jones that he will file a waiver of Clark’s appearance by the end of the day.
Jones, however, isn’t satisfied with this promise. He says today’s hearing can proceed, but only if he receives a waiver from Clark within the next hour. He then excuses MacDougald’s co-counsel, Catherine Bernard, who scurries out of the room to work on obtaining the waiver.
Now, finally, MacDougald is ready to proceed. He begins by focusing on the second factor Clark must establish to remove his case to federal court—the “under color of office” prong, which requires a showing that the acts alleged in the indictment were done under asserted official authority. In Clark’s case, the indictment alleges that he repeatedly urged Acting Attorney General Jeffrey Rosen and Acting Deputy Attorney General Richard Donoghue to sign a document that falsely stated that the Justice Department had identified “significant concerns” that could impact the results of the 2020 presidential election in Georgia and multiple other states. Clark then asked Rosen and Donoghue to send the document to several Georgia state officials, including Gov. Brian Kemp. In relation to that conduct, the indictment charges Clark for allegedly violating Georgia’s racketeering statute and for attempted false statements and writings.
As MacDougald tells it, Clark prepared the letter in his capacity as then-acting assistant attorney general in the Justice Department’s Civil Division. He stresses that the letter was prepared “using equipment and software” provided by the Justice Department. On other occasions, MacDougald continues, Clark met with Rosen and Donoghue at offices in the Justice Department. And on Jan. 3, 2021, Clark met with then-President Trump and several Justice Department officials at the White House for more than three hours to discuss the letter. “Not one iota” of that conduct would be remotely possible, MacDougald contends, but for the fact that Clark was acting under color of office.
MacDougald then turns to the meaning of “under color of office.” The removal statute, he says, has been liberally construed and does not require a stringent showing. He cites a Supreme Court case, Jefferson County v. Acker, for the proposition that courts should accept the defendant’s “theory of the case” for purposes of determining whether he or she acted within the scope of federal office. And while MacDougald insists that Clark did not break the law in Georgia, he says that “you can be under ‘color of law’ and break the law.” To illustrate what he means by this, MacDougald cites a U.S. Court of Appeals for the Eleventh Circuit case, United States v. Stephen House, in which a law enforcement officer was held to be acting under “color of law” even though he violated the Fourth Amendment.
“We don’t have to win the whole case on the merits to be entitled to removal,” MacDougald stresses.
Next, MacDougald attempts to push back on the district attorney’s argument that Clark, by involving himself with election matters, “strayed out of his lane” as acting head of the Justice Department’s Civil Division. He points, first, to an affidavit written by former Attorney General Edwin Meese, which claims that the work of assistant attorneys general is “fungible,” meaning they can be tasked with performing any duties or responsibilities under the attorney general by the attorney general or the president.
What’s more, MacDougald complains that the indictment “doesn’t say a word” about the Jan. 3, 2021, meeting at the White House, in which Clark met with Trump and several Justice Department officials to discuss the letter. While acknowledging that every lawyer in that meeting except Clark opposed sending the letter, he points out that Trump never indicated that Clark was acting outside the scope of his office. The president, MacDougald claims, never told Clark, “I’m mortified you’ve gone outside your lane. You, sir, are fired.” Instead, MacDougald continues, the opposite happened: Trump asked for Clark’s advice, and Clark responded accordingly. That Jan. 3 meeting, MacDougald contends, “ratifies” that everything Clark did with respect to the letter was “in his lane.” Why? Because the president had decided that it was “in his lane.”
MacDougald also points to another example of Trump putting election matters in Clark’s “lane”: A Jan. 1, 2021, email from Trump’s chief of staff, Mark Meadows, to then-Acting Attorney General Rosen. In that email, Meadows asserted that there “have been allegations of signature match anomalies” in Fulton County. “Can you get Jeff Clark to engage on this issue immediately to determine if there is any truth to this allegation,” Meadows wrote. That request, MacDougald stresses, was coming from the president. So that puts election issues in Clark’s “lane,” he claims.
Judge Jones interjects to note that Rosen and Donoghue, in their respective testimony before the Senate Judiciary Committee, have stated that the Civil Division of the Justice Department did not have a role in election matters. Additionally, Jones observes, Rosen and Donoghue suggested that Clark’s communications with Trump violated the department’s policy regarding communications between Justice Department officials and the White House. That policy provides for a procedure by which the president communicates with department leadership—meaning the attorney general or deputy attorney general—on all matters. Meanwhile, lower-level officials, including assistant attorneys general like Clark, communicate with the president only if authorized to do so.
In response, MacDougald again refers to Meese’s affidavit in support of the proposition that assistant attorneys general function as “the hand” of the president. Under this view, the president has near-absolute authority to delegate law enforcement tasks or to request advice from department officials like Clark. Further, MacDougald says that the Civil Division did engage in election-related work. He points to Gohmert v. Pence, a case in which a congressman, Louie Gohmert (R-Texas), filed a suit asking a judge to declare that Vice President Mike Pence had authority to decide which electoral votes should be counted during the joint session of Congress on Jan. 6, 2021. According to MacDougald, Clark “directed and framed” the arguments defending Pence in that case.
As to the communications between Clark and Trump, MacDougald asserts that it was then-President Trump who asked for an introduction to Clark, not the other way around. According to MacDougald, Trump asked Rep. Scott Perry (R-Penn.) to introduce him to Clark. It was only after this introduction that the letter was discussed, he claims. And, in any event, the Justice Department’s contacts policy could not possibly “restrain” the president’s authority to contact individuals within the executive branch, MacDougald contends.
Judge Jones then wonders aloud why the president asked Perry to introduce him to Clark in the first place. “I don’t know the answer to that,” MacDougald replies. “I know he was talking to Perry.”
So if not for Trump, Jones queries, Clark wouldn’t have gotten involved with election matters? “I think that’s right,” MacDougald responds.
Moving on, MacDougald turns to the content of Clark’s letter. Fulton County prosecutors allege that Clark’s letter falsely stated that the Justice Department had identified voting irregularities in the 2020 election. But the idea that everything was “on the up and up” in Fulton County during the 2020 election “ain’t necessarily so,” MacDougald declares. Clark, he continues, was entitled to form a different “opinion” than his superiors based on the “weight and sufficiency” of evidence related to alleged voting irregularities.
“Lawyers can disagree … without being put in prison,” MacDougald says.
But as MacDougald expounds further on this point, Jones cuts him off. I think this argument goes more toward aspects of the trial, he says.
Moving on, MacDougald turns to the third factor courts consider when determining if a case should be removed under 28 U.S.C. § 1442: whether the defendant can raise a “colorable” federal defense. In filings ahead of the hearing, Clark has asserted Supremacy Clause immunity, which shields federal officers from state prosecutions arising from conduct they subjectively and reasonably believed to be “necessary and proper” in carrying out their federal duties. As a part of that argument, Clark has alleged that the Supremacy Clause “bars enforcement of any state’s criminal law against Mr. Clark based on the content of his confidential internal deliberations at the Department of Justice or with the President.”
MacDougald focuses on the purported impropriety of state prosecutors bringing charges related to internal deliberations among Justice Department officials. He urges Judge Jones to consider a hypothetical scenario in which the judge assigns one of his clerks to write a memo arguing a certain legal position. If Jones and the other clerks in his chambers ultimately disagree with the position set out in the memo, surely it cannot be alleged that the clerk who drafted the memo committed attempted false writings under Georgia law, MacDougald says. But if the Fulton County district attorney can prosecute Clark for what he did in the White House, McDougald warns that they could just as well send law enforcement into Jones’s chambers to arrest his clerks.
Jones glances in the direction of his clerks. “You guys hear that?” he quips.
It’s a bad day in court for clerks, apparently, as well as caimans.
Undeterred, MacDougald raises another hypothetical, this time involving a fictional lawmaker who is prosecuted for drafting proposed legislation. Each of these scenarios, he says, involves conversations that occurred under highly “privileged” circumstances, whether that be executive privilege, or deliberative process privilege, or attorney-client privilege. Those privileges exist to promote good government and free exchange of ideas, he says. But Clark’s prosecution threatens to set a precedent that would degrade the function of those privileges. “That’s the Pandora’s Box the state would have you open,” he tells Jones.
Now, after more than an hour at the lectern, MacDougald is done. As he returns to his seat, Fulton County special prosecutor Nathan Wade pops up to inquire about Clark’s waiver of appearance. Bernard, who slipped back into court during MacDougald’s presentation, gestures to her computer. I’m filing the waiver now, she tells Jones.
Next, Cross is up on behalf of the district attorney’s office. She begins by announcing that the state has objections to several items the defense sought to admit into evidence. First, she says, the prosecution objects to the admission of a written declaration by Clark, whom the state has not had the opportunity to cross-examine. McDougald attempts to push back on this, but Jones isn’t having it. “I’m not going to allow Mr. Clark’s declaration in,” he announces.
Cross also objects to the Meese affidavit, noting that some of the content arguably goes to expert opinion. Other aspects of the affidavit, she continues, are simply irrelevant.
Jones initially indicates that the Meese affidavit, like the Clark declaration, will not be admitted into evidence. But after the court takes a brief recess, Jones announces that he’s had a change of heart. The Meese affidavit can be admitted, but Jones will give it “less weight” as he sees fit. And he suggests that at least some portions of the affidavit will ultimately be excluded altogether, which he intends to note in his written order.
With the evidentiary issues now resolved, the prosecution calls its first and only witness of the day: former Justice Department official Jody Hunt. Hunt, clad in a charcoal suit and sporting a multi-color tie, takes his seat at the witness stand. No caiman boots.
Cross begins the state’s direct examination by tendering the state’s first exhibit. It’s a “Tuohy letter” authorizing Hunt’s appearance at the hearing. Such authorization is required under the Justice Department’s “Tuohy regulations,” which provide that current or former employees must receive permission to testify about information acquired in the course of their official duties at the department. Acknowledging the letter, Hunt also notes that he is joined by an attorney for the Justice Department, who he may refer to as needed during his testimony. While Hunt no longer works for the Justice Department, he’s here to testify about his experience as an official in the department. All of which is why an attorney for Hunt’s former employer has accompanied him here today.
Hunt testifies about his employment history and experience. He joined the Justice Department in 1999, he says, and worked there until 2020. For nearly three years, from 2017 to 2020, Hunt served as assistant attorney general for the Justice Department’s Civil Division. In that capacity, he says, he knew Clark as a work acquaintance because the two both worked in the Civil Division. But they were not personal friends, he explains.
Cross then asks Hunt to explain the duties and responsibilities of the Civil Division within the Justice Department. Hunt, in turn, explains that the Civil Division functions primarily in two capacities. First, he says, the division pursues “affirmative enforcement matters,” meaning that it litigates matters on behalf of the United States to enforce federal laws and regulations. According to Hunt, the bulk of the division’s work in its affirmative posture involves large-scale financial fraud investigations or consumer protection cases. Second, Hunt continues, the division also acts in a “defensive” posture, as it is tasked with defending federal officers in civil litigation.
Cross follows up: Does the Civil Division have anything to do with investigating election fraud or voting irregularities?
“No,” Hunt replies with an air of confidence. “In my experience, it is not the role of the Civil Division” to engage with matters involving alleged election fraud or voting irregularities, he says.
Continuing down this track, Hunt testifies that there are some limited circumstances in which the Civil Division might get involved with an election-related matter in its “defensive” posture. At Cross’s prompting, he observes that the Gohmert litigation is one such example of this: In that case, he explains, a federal official—Vice President Pence—had been sued. So, the Civil Division defended him in that capacity, Hunt says.
As Cross wraps up her direct examination, MacDougald strides to the lectern to conduct cross-examination for Clark. He peppers Hunt with a series of questions about his experience in the department. Did you ever disagree with attorneys in your office? Did you ever attend meetings to hash out those disagreements? Did you ever draft and not send a letter? Hunt, in each instance, says that he likely did do such things.
MacDougald ends with this: Did any lawyers you worked with at the department who were tasked with reviewing a draft letter end up getting charged with a crime by state prosecutors? Not that I’m aware of, Hunt replies.
After a brief redirect, Hunt steps down from the witness stand and makes his way toward the nearest exit. Judge Jones invites the parties to present closing arguments.
First up is MacDougald, who begins by emphasizing that the Justice Department is not a “separate branch” of government. Invoking the U.S. Constitution’s Take Care Clause, he says that the power of the executive branch is vested in the president, not the attorney general. And that power cannot be constrained by internal Justice Department policy, he argues. Further, he reiterates his view that it is not the function of a state prosecutor to “peer into” the internal deliberations of executive branch officials.
Turning to the “color of office” question, MacDougald tells Judge Jones that Clark’s case is distinguishable from Meadows’s removal efforts because here there is no alleged Hatch Act violation. And, finally, he again emphasizes that the Supreme Court in Acker instructed courts to accept the defendant’s “theory of the case” in determining whether removal is warranted.
At this point, Jones interjects to ask what it means to accept the “theory of the case.” He wants to know how far that concept stretches. “Far enough to cover this case, your honor,” MacDougald responds. This elicits a quiet chuckle from Jones.
MacDougald, pressing on, clarifies his “theory of the case” for Jones. Our theory, he says, is that the president “ratified” Clark’s conduct during the Jan. 3, 2021, meeting at the White House. Clark acted in his lane as a federal official, because “the President put it in his lane,” MacDougald stresses.
Now Donald Wakeford treads to the lectern to offer remarks on behalf of the district attorney’s office. He reminds Judge Jones that Clark bears the burden of showing that removal is justified. And he points to a Supreme Court case, Willingham v. Morgan, in which the court indicated that a “more detailed showing” might be necessary to remove criminal cases to federal court, as there is a compelling state interest in conducting criminal trials in state court.
Acknowledging that Clark’s attorney has argued that his client’s conduct was “ratified” under the authority of the president, Wakeford observes that there has been no testimony or other evidence to support that contention. What’s more, Wakeford points out that Clark has identified no federal law that he sought to enforce by drafting the allegedly false letter. While MacDougald invoked the Take Care Clause, Wakeford says that’s not sufficient. The clause, he says, does not vest the president with the power to tell a state how it should conduct its elections. “We have gotten nothing today that could satisfy the burden” of showing that Clark acted under color of office, Wakeford declares.
Turning to the “colorable federal defense” prong, Wakeford similarly points to the lack of evidence put forth by Clark. He says that MacDougald made “vague allusions” to various types of privileges, but those privileges are not “affirmative defenses” to the charged conduct. Further, while Clark has raised Supremacy Clause immunity, that defense requires a showing that the federal official subjectively and reasonably believed his conduct was “necessary and proper” in carrying out his official duties. “I have not heard the words ‘necessary and proper’ a single time,” Wakeford emphasizes.
Even if the court assumed that Clark subjectively believed his actions were proper, Wakeford says there is no basis to find that that belief was reasonable. He points out that Clark’s superiors not only told him “this is not your job”; they also indicated “this is not anyone’s job” in the Justice Department.
At this, Judge Jones wonders aloud what he should make of the argument that Clark came within the scope of his office once the president began asking him for advice and assistance. In reply, Wakeford contends that Clark would first need to show that the president had the authority to weigh in on state election matters by having the Justice Department send a false letter. Clark has failed to do that, Wakeford argues. “There has to be a detailed showing, and the defendant has failed to do that,” he concludes.
MacDougald springs to his feet for rebuttal. He again reminds Judge Jones that Clark need not prove his case on the merits at this juncture. And he pushes back on Wakeford’s claim that a “more detailed showing” is necessary because of the state’s interest in prosecuting the case in state court. According to MacDougald, most criminal actions removed from state to federal court involve law enforcement officers who kill people in the line of duty. In those cases, he tells Jones, there is a more compelling state interest, because “a dead body” is on the ground. By contrast, he continues, this case involves a draft letter that was never sent. And while a dead body clearly suggests that there has been a violation of law, in MacDougald’s view it can’t be a violation of state law to “have a conversation with someone at the Justice Department.” The state’s theory of the prosecution, MacDougald concludes, “cannot be reconciled with federal supremacy.”
Judge Jones moves to final remarks as MacDougald returns to his seat. Noting that there is another hearing on removal later this week, he advises the parties that he will enter an order in due course, though he does not know precisely when.
With that, the proceedings are adjourned.