DISTRICT OF COLUMBIA COURT OF APPEALS

October 28, 2024 11:42 pm

BOARD ON PROFESSIONAL RESPONSIBILITY

In the Matter of

JEFFREY B. CLARK Board Docket No. 22-BD-039

A Member of the Bar of the District Disciplinary Docket No.

of Columbia Court of Appeals
2021-D193
Bar No. 455315

Date of Admission: July 7, 1997

BRIEF OF RESPONDENT

Charles Burnham Robert A. Destro

DC Bar No. 1003464 Ohio Bar #0024315
Burnham and Gorokhov, PLLC 4532 Langston Blvd, #520
1424 K Street, NW Arlington, VA 22207
Suite 500 202-319-5303
Washington DC 20005 [email protected]
(202) 386-6920
[email protected]

Harry W. MacDougald
Georgia Bar No. 453076
Caldwell, Carlson, Elliott & DeLoach, LLP
6 Concourse Parkway, Suite 2400
Atlanta, Georgia 30328
(404) 843-1956
[email protected]
 TABLE OF CONTENTS

Introduction ................................................................................................................1
Response to ODC Brief..............................................................................................4
The Rules Framework ................................................................................................6
I. Under 28 U.S.C. §511 and the Constitution, the President Is the Client of
the Attorney General, and of All DOJ Lawyers Subject to the Attorney
General’s Authority, in All Cases When the President, Acting in an
Official Capacity, asks the Attorney’s Advice. ................................................7
II. RPC 2.1 Defines the Advisory Responsibilities of D.C. Lawyers, and
RPCs 1.2 (a), (c), (d), and (e), Govern the Division of Authority Between
D.C. Attorneys and Their Clients. ....................................................................8
III. ODC’s Reading of the D.C. Rules of Professional Conduct Is Legally
Defective. .......................................................................................................15
1. As an Assistant Attorney General of the United States, Clark Had
Statutory and Constitutional Discretion as a Principal “Officer of the
United States That is Fully Consistent with the Commands of D.C.
RPCs 1.2 and 2.1. ........................................................................................15
2. Because an Assistant Attorney General Has Statutory and
Constitutional Authority to Exercise “Independent Professional
Judgment,” ODC’s Argument That AAG Clark Was Required to Defer
to the Factual Findings or Legal Conclusions of Other Justice
Department Personnel Would Create a Conflict of Interest Under D.C.
RPCs 1.7(b)(2), (3), and (4). .......................................................................17
Constitutional Arguments ........................................................................................20
I. Clark Is Immune from This Disciplinary Action. ..........................................20
1. Clark Is Entitled to Absolute Prosecutorial Immunity. ...............................23
2. Clark Is Entitled Qualified Immunity. ........................................................24
II. Clark Is Entitled to an Interlocutory Appeal on Immunity.............................26
III. ODC’s Evidence Is Inadmissible. ..................................................................29
1. Executive Privilege .....................................................................................32
2. Deliberative Process Privilege ....................................................................35
3. Law Enforcement Privilege ........................................................................37
4. Attorney-Client Privilege ............................................................................37

ii
 IV. The Impact on the Profession of Disciplining a Lawyer Over a
Confidential, Unsent Draft .............................................................................38
V. The Committee Erroneously Required Clark to Take the Stand in the
Face of His Valid Fifth Amendment Invocation. ...........................................40
VI. This Disciplinary Action Violates the Supremacy Clause. ............................42
VII. .................... Alternatively, This Disciplinary Action Violates the Separation of
Powers. ...........................................................................................................44
VIII. Lack of Fair Notice Violates Due Process...............................................45
IX. Clark Was Denied Equal Protection. ..............................................................46
X. The Structure of the DC Discipline Process Violates the Private Non-
Delegation Doctrine, the Appointments Clause, and the Oath Clause. .........48
XI. ODC’s Changing Theories of the Case (Further Support for the Lack of
Fair Notice).....................................................................................................52
Statutory and Regulatory Arguments .......................................................................54
I. There Is No Jurisdiction Over This Case Because of Flaws in the Part 77
Regulatory Theory. .........................................................................................54
1. 28 U.S.C. §530B(a) and Its Implementing Regulations 28 C.F.R. § 77.2
Do Not Apply to the District of Columbia. .................................................54
2. Even if Section 530B and 28 C.F.R. §77.2 Grant General Disciplinary
Authority, ODC Cannot Satisfy Their Prerequisites. ..................................59
II. The Board Erred by Denying Clark’s Request to Defer the Case Based
on Pending Related Criminal Litigation and Investigation............................61
1. The Boards Denial was Based on a Legally Incorrect Interpretation of
Rules 4.1 and 4.2 by the Chair of Committee 12 ........................................62
a. The Chair Erroneously Conflated the Different Standards in Rules
4.1 and 4.2 ...............................................................................................62
b. The Committee Chair Erroneously Limited 4.2 Deferrals that Are
Based on Fifth Amendment Concerns to Situations Where Failure to
Defer Would Create a Constitutional Violation.......................................64
2. The Board Abused its Discretion by Denying Clark’s Motion to Defer ....66
Evidentiary Arguments ............................................................................................67
I. There is No Actual or Attempted Dishonesty in the Letter. ...........................67
1. What Constitutes Dishonesty Under Rule 8.4(c) ........................................67

iii
 2. The Committee Erroneously Conflated Reckless Disregard of the
Consequences with Reckless Disregard of Truth or Falsity. ......................69
3. Clark’s Sincerity Precludes a Finding of Dishonesty .................................75
II. The Evidence Does Not Show Attempted Dishonesty. ..................................77
III. The Committee Erred by Excluding Post January 3, 2021 Evidence. ...........81
IV. The Recommended Penalty Is Excessive .......................................................82
Certificate of Length ................................................................................................88

iv
 DISTRICT OF COLUMBIA COURT OF APPEALS

BOARD ON PROFESSIONAL RESPONSIBILITY

In the Matter of

JEFFREY B. CLARK Board Docket No. 22-BD-039

A Member of the Bar of the District Disciplinary Docket No.

of Columbia Court of Appeals
2021-D193
Bar No. 455315

Date of Admission: July 7, 1997

BRIEF OF RESPONDENT

INTRODUCTION

Stripped to its essentials and shorn of the partisan politics that drives it, this

case is about the duty that attorneys owe to a client who rejects their advice because

he questions their diligence, competence, and loyalty. The very first paragraph of

ODC’s Opening Brief concedes that, at all times relevant to ODC’s Charges,

President Donald J. Trump sought, and received in his official capacity, legal advice

and counsel about alleged 2020 federal election “irregularities” from at least three

attorneys employed by United States DOJ: Acting Attorney General Jeffrey Rosen,

Principal Associate Deputy Attorney General Richard Donoghue, and Respondent,

Assistant Attorney General Jeffrey B. Clark. ODC thus concedes that Trump, acting

in his official capacity, had an attorney-client relationship with his DOJ attorneys.

ODC Brief at 1 ¶1. Just as in Trump v. U.S., 144 S.Ct. 2312, 2334-2335 (2024), ODC
“does not dispute that [the Charges] regarding the Justice Department involve

Trump’s “use of official power,” and thus “plainly implicate Trump’s ‘conclusive

and preclusive authority” to consult with any Justice Department attorney to seek

answers to his questions. U.S. Const. art. II §2, cl. 2 (Opinions Clause).

That very first paragraph also explicitly acknowledges that Trump “refused to

accept” Rosen and Donoghue’s advice because he was not satisfied that the DOJ had

diligently and competently carried out Attorney General Barr’s November 9, 2020,

instruction that the Department investigate “clear and apparently-credible

allegations of irregularities that, if true, could potentially impact the outcome of a

federal election in an individual state.” ODC Brief at 5 ¶2 (emphasis added), quoting

FF. 27, 29-39.

In ODC’s narrowly focused narrative, Mr. Clark should have refused Trump’s

request to investigate further. ODC Brief p. 1 ¶1. Rule 2.1 and the Opinions Clause,

U.S. Const. art. II §2 cl. 2 — which are never even referenced by the Hearing

Committee (“the Committee”) or ODC — are to the contrary. They explicitly require

that, in advising a President, Justice Department attorneys “shall exercise

independent professional judgment and render candid advice.” (emphasis added)

Clark was obligated by the Rules to respond to the President, who, under Rule

1.13(b) is “the highest authority that can act on behalf of the [United States] as

determined by applicable law.”

2
 Nor do ODC and the Committee even mention Rule 1.2(a) and the Vesting

Clause, U.S. Const. art. II §1. Read together, the Rule and the Constitution explicitly

require that a “[a] lawyer [for the President] shall abide by [the President’s] decisions

concerning the objectives of representation, subject to paragraphs (c), (d), and (e),

and shall consult with the [President] as to the means by which they are to be

pursued.” (emphasis added).

Up to a point, two of these three attorneys did precisely that. But only Clark

adhered to the Rules at all times and in all respects. Pursuant to the discretion

confirmed by Rule 2.1, all three attorneys referred “not only to law but to other

considerations such as moral, economic, social, and political factors, that [were

relevant] to the [Trump’s] situation” at the time. Rosen and Donoghue thus had not

only the authority under Rule 2.1 to express their respective opinions to the President

concerning both the nature and limits, in their view, of Justice Department authority

over “irregularities” that might affect the outcome of the 2020 federal election, while

also defending the Department’s competence and diligence. And the record fully

demonstrates that they “persisted” in doing so. That is precisely what Rules 1.2(e),

1.13(b) and 2.1 require.

The same Rules apply to Clark. Rosen and Donoghue, however, deviated from

Rule 1.6(a) by disclosing the details of these privileged conversations. It is Clark

who stands before this Board and was indicted in Georgia because he took the

3
President’s request seriously. He “persisted” in providing the advice requested by

the President and stopped, as Rule 1.2(a) requires, when the President made the

decision “concerning the objectives of the representation … and … the means by

which they are to be pursued.” And at no time has he ignored the legal privileges

that bind him beyond defending himself based on unlawful disclosures made by

colleagues who disagreed with his confidential legal advice.

By contrast, Messrs. Rosen, Donoghue, and Philbin violated Rule 1.6(a) not

only by “reveal[ing the President’s] “confidence[s] and secret[s] … to the

disadvantage of [Trump and the Office of President] [but they did so] for the [their

own] advantage …” and that of his political opponents.

If the BPR recommends discipline in this case, Clark will thus become the

first lawyer in U.S. history to be disciplined because he followed the Rules of

Professional Conduct that govern cases where attorneys and clients disagree on a

colorable legal, but controversial, proposed course of action.

RESPONSE TO ODC BRIEF

This is a disciplinary case. As such, its focus is limited to specific “[a]cts or

omissions … which violate the attorney’s oath of office or the rules or code of

professional conduct currently in effect in the District of Columbia”, Rule XI §2(b).

Neither the Committee’s R&Rs [“R&R”] and ODC’s Opening Brief even mention

that Clark, Rosen, and Donoghue were Trump’s lawyers. Nor do they mention the

4
framework provided by Constitution and the Rules of Professional Conduct that

define the obligations of government lawyers who find themselves embroiled in a

dispute among themselves and with the President of the United States, about the

wisdom or legality of a proposed course of action that two of them thought was

unwise.

It is undisputed that Clark advocated for the course of action he proposed in

the “proof of concept” letter. It is undisputed that Rosen and Donoghue disagreed

with him, and that all three “persisted” in advocating for their positions concerning

the “proof of concept” until the President decided that the letter would not be sent.

RPCs 1.2 (a, d, e); 1.3, 1.6; 1.7(b)(2, 3, 4); 1.13; 2.1, and 3.8 provide a detailed and

explicit framework for analyzing every attorney’s conduct in this case, including the

witnesses and ODC. D.C. RPC Scope ¶ [6]. The D.C. Code of Judicial Conduct

requires that this Board follow those rules.

Respondent respectfully submits that this is a “textbook case” in which ODC

and the Committee are ignoring — and thus violating — the very Rules they are

sworn to enforce. RPC 3.4(a) (access to evidence); 3.8 (a, b, c, d) (responsibilities

of ODC); D.C. Code of Judicial Conduct, Rule 1.1: “A judge shall comply with the

law, including the Code of Judicial Conduct; Rule. 2.2: “A judge shall uphold and

apply the law, and shall perform all duties of judicial office fairly and impartially.”

(footnote omitted).

5
 Because Clark’s actions as a government lawyer cannot be understood

without reference to Rule 1.2(d)’s admonition that “A government lawyer’s

authority and control over decisions concerning the representation may, by statute

or regulation, be expanded beyond the limits imposed by paragraphs (a) and (c),”

the facts that the Committee “found” will be addressed through the lens of Comment

[2] to Rule 1.3:

In our government of laws and not of individuals, each member of our

society is entitled to have such member’s conduct judged and regulated
in accordance with the law; to seek any lawful objective through legally
permissible means; and to present for adjudication any lawful claim,
issue, or defense.

THE RULES FRAMEWORK

From a professional responsibility perspective, this is (or ought to be) an easy

case. As a disciplinary case, its focus is limited to specific “[a]cts or omissions …

which violate the attorney’s oath of office or the rules or code of professional

conduct currently in effect in the District of Columbia,” Rule XI §2(b). The text of

RPC 1.2 (a, d, e); 2.1; and 1.7(b)(2), (3), and (4) provide detailed and explicit

“controlling” standards that define the obligations of all lawyers who find

themselves embroiled in a dispute with their client, or among themselves, about the

wisdom or legality of a course of action the client proposes to take. Scope ¶ [6].

Assuming doing so is consistent with the Constitution (below for Clark’s

constitutional defenses), federal law and its implementing regulations incorporate

6
the D.C. Rules of Professional Conduct as rules of decision for federal lawyers

admitted in D.C. as long as those rules are not “construed in any way to alter federal

substantive, procedural, or evidentiary law or to interfere with the Attorney General's

authority” to advise or assist the President concerning proper execution of the law,

including by “send[ing] Department attorneys into any court in the United States.”

28 U.S.C. §530B, as implemented in 28 CFR §77.1(b). The duties of an Attorney

General admitted in D.C., and of all attorneys admitted in D.C. who report to the

Attorney General, are defined, in the first instance, by reading federal law and the

D.C. Rules together, as “rules of reason” that “presuppose a larger legal context

shaping the lawyer’s role” and the “specific obligations of lawyers”. D.C. R.P.C.,

Scope ¶¶ [1], [2], [3].

I. U N D E R 28 U.S.C. §511 A N D T H E C O N S T I T U T I O N , T H E
PRESIDENT IS THE CLIENT OF THE ATTORNEY GENERAL,
A N D O F A L L DOJ L A W Y E R S S U B J E C T T O T H E A T T O R N E Y
GENERAL’S AUTHORITY, IN ALL CASES WHEN THE
PRESIDENT, ACTING IN AN OFFICIAL CAPACITY, ASKS THE
ATTORNEY’S ADVICE.

RPC 1.2(d) provides that “[a] government lawyer’s authority and control over

decisions concerning the representation may, by statute or regulation, be expanded

beyond the limits imposed by paragraphs (a) and (c).” In this case, Opinions Clause,

U.S. Const. art. II §2 cl. 2, is the initial reference defining the duty of the Attorney

General: The President “may require the Opinion, in writing, of the principal Officer

in each of the executive Departments, upon any Subject relating to the Duties of their

7
respective Offices”. 28 U.S.C. §511 imposes a more general duty: “The Attorney

General shall give his advice and opinion on questions of law when required by the

President.” 28 U.S.C. §511 thus implements, for federal lawyers admitted in D.C.,

the mandate of the Opinions Clause, and expressly identifies the President as their

client in the limited class of cases where the President directly solicits their advice.

Meese Tr.1523-27. It would be unconstitutional in violation of both Article II of the

Constitution’s Take Care Clause and of the analysis in Trump v. U.S. for the Board

to attempt to rely here on RPC 1.6(k) (for confidentiality purposes, the “client of the

government lawyer is the agency that employs the lawyer unless expressly provided

to the contrary by appropriate law, regulation, or order.”). Few DOJ lawyers directly

get to interact with the President. Clark was one of them and Board cannot ignore

that fact and its legal significance.

II. RPC 2.1 D E F I N E S T H E A D V I S O R Y R E S P O N S I B I L I T I E S O F

D.C. L A W Y E R S , A N D RPC S 1.2 ( A ), ( C ), ( D ), A N D ( E ),
G O V E R N T H E D I V I S I O N O F A U T H O R I T Y B E T W E E N D.C.
ATTORNEYS AND THEIR CLIENTS.

Every D.C. lawyer who responds to a Presidential request for advice must

comply with RPC 2.1:

In representing a client, a lawyer shall exercise independent

professional judgment and render candid advice. In rendering advice, a
lawyer may refer not only to law but to other considerations such as
moral, economic, social, and political factors, that may be relevant to
the client’s situation.

8
 The opening paragraph of ODC’s brief admits that “Trump refused to accept

[as] fact” the advice and legal opinion offered by former Attorney General William

Barr about the nature, quality, and reliability of the work supporting the legal

opinions offered by DOJ lawyers (besides Clark) following the 2020 election, ODC

at p. 1 ¶1.

It is undisputed that after Trump rejected former Attorney General Barr’s

advice, the President continued to consult personally with Assistant Attorney

General Clark, and with ODC’s witnesses, Messrs. Rosen and Donoghue at DOJ and

Associate White House Counsel Philbin, among others. It is also undisputed that

during those consultations the President continued to express his belief “that the

election was corrupt” and that he required legal advice from each of them

concerning the nature and scope of his duty to ensure that the laws of the United

States would be “faithfully executed.”

ODC further concedes that all senior DOJ and White House Counsel attorneys

consulted knew that the President had rejected Mr. Barr’s analysis and legal opinion

and that all of them understood the legal implications of that refusal. ODC at 1-2.

They also knew that the course of action outlined in the “proof of concept letter”

was under consideration by the President, and that “[a]ll of the AAGs (save one who

9
could not be reached) agreed that they would resign” because Clark would send the

letter were he appointed Acting Attorney General. ODC at 19.1

In the face of a lawyer-client dispute of such depth and magnitude, the course

of action required by RPC 1.2 was for the lawyers to consult among themselves, to

determine, in the first instance, whether any advice they might give in response to

the President’s requests would “counsel [Trump] to engage, or assist [him], in

conduct that the lawyer knows is criminal or fraudulent.” RPC 1.2(e).

It is undisputed that Clark knew that the course of action proposed in the

“proof of concept letter” would be controversial, and nowhere do either ODC or the

Committee maintain either that it was “criminal or fraudulent” or that any of the

attorneys believed it to be. The plain text of RPC 1.2(e) thus requires consultation

among the attorneys, who are explicitly authorized to “discuss the legal

consequences of any proposed course of conduct with a client and may counsel or

assist a client to make a good-faith effort to determine the validity, scope, meaning,

or application of the law.”

None of the attorneys who testified against Clark alleged, nor does ODC argue

in any part of its brief, that any of the lawyers involved in the discussion of the

1This is not entirely accurate as to one of the AAGs, but Mr. Clark cannot testify to explain why
consistent with his defense of the applicable privileges (which he is obligated to press to all levels
of possible appeal), with the Trump exclusionary rule ( below), and with his invocation of the Fifth
Amendment, which he must maintain given the Committee’s and Board’s insistence that they
would not defer consideration of this case until the Fulton County, Georgia criminal case against
him and Trump, at the very least, concludes. We urge that deferral be reconsidered ( below).

10
wisdom or legality of the course of action proposed by Clark knew that the course

of action proposed in the “proof of concept letter” was either “criminal or fraudulent”

under federal or State law. They expressed their view that Clark’s opinion regarding

then-existing evidence in Georgia about the 2020 election was incorrect, with Clark

basing his view on information from testimony to the Georgia Senate and from other

civil litigation, but they never claimed that taking a different position rose to the

level of fraud.

Though Messrs. Rosen, Donoghue, and Philbin testified that they believed that

the “proof of concept letter” proposed a course of action that was unauthorized by

law and politically unwise, they continued to press their case. So did Clark.

What the ODC and the Committee ignore is that the statements in the “proof

of concept letter” were neither false as a matter of fact, nor false as a matter of law.

It is undisputed that Clark was “investigating various irregularities in the 2020

election for President of the United States”; that he “had identified significant

concerns that may have impacted the outcome of the election in multiple States,

including the State of Georgia”; that he “[found] troubling the current posture of a

pending lawsuit in Fulton County, Georgia”; that he “believe[d] that in Georgia and

several other States, both a slate of electors supporting [Biden] and a separate slate

of electors supporting [Trump], gathered on that day at the proper location to cast

their ballots, and that both sets of those ballots have been transmitted to Washington,

11
D.C. …”;’ and that he believed and “was aware that a similar situation occurred in

the 1960 election.” ODC Exh. 8 at 1-2. And since the letter suggested that convening

by special session could lead to a reexamination that could cause the Georgia

Legislature to use its plenary power to redesignate electors under McPherson v.

Blacker, 146 U.S. 1 (1892), it is clear that Clark was well aware that the alternate

slates of electors was not currently in force. The letter makes no sense if both the

official and alternate slates of electors were thought by Clark to be of equal legal

dignity at the time. Clark never claimed that and the letter does not say that.

Unless this Board is prepared to advocate to the D.C. Court of Appeals, as a

matter of law, that an Assistant Attorney General, operating at the direction of the

President of the United States, is not a representative of the “DOJ,” every one of

Clark’s proposed statements is true as a matter of fact and as a matter of law. The

Committee and this Board cannot have it both ways. Rosen and Clark were Senate-

confirmed lawyers who, under 28 U.S.C. §§506-514, were authorized to advise the

President of the United States “upon any Subject relating to the Duties of their

respective Offices.” U.S. Const. art. II §2, cl. 2. (Opinions Clause). Mr. Donoghue,

by virtue of his appointment by Attorney General Barr, was also authorized to and

did advise the President. Either all three of them were authorized by law to speak in

their internal working documents in the name of the “DOJ,” or none were. Clark

inherently received many draft legal briefs or memos for his signature or approval.

12
 Most importantly, the letter was a proposal. This case would make more sense

if Clark had disobeyed his instruction from Messrs. Rosen and Donoghue or Trump

and sent out the letter anyway. But that did not occur and indeed others leaked its

existence to the New York Times. Clark did not act unilaterally by sending the letter

to the outside world, pretending (before he had even determined their views) that

Messrs. Rosen and Donoghue agreed with him and that his draft letter was the final

position of DOJ. A subordinate lawyer writing a draft sent to AAG Clark for filing

or other dissemination was not engaging in fraud or other falsity whenever AAG

Clark edited such a brief to strike arguments, revise them, or add to them. The draft

letter to the Georgia Legislature here is no different than a proposal by a line lawyer

in the Civil Division’s Appellate Staff preparing an initial draft brief to AAG Clark,

except that here it was AAG Clark making a proposal to his superiors and then

vigorously advocating for his point of view—all internally.

It was no more accurate, as a matter of either fact or law, for Rosen and

Donoghue to assert that “the DOJ actively investigated allegations of irregularities

that might have affected the results … [and] had found no fraud that might have

affected the outcome.” The fact that “Attorney General Barr said so” did not bind

the President to accept their analysis, nor restrict his power to seek further

investigation by, and advice from, Clark. Trump, 144 S. Ct. at 2334-2335. Had the

President approved further investigation, Rules 1.4 and 3.4 would also have required

13
that the attorneys conducting that investigation follow the instructions of the

President to keep all parties “reasonably informed” on “investigatory process.” Id.

It is fatal to ODC’s case that RPC 1.2(e) expressly authorized the attorneys

who wanted to remain engaged in the discussion about the “proof of concept letter”

to “discuss the legal consequences of any proposed course of conduct with [the

President].” Because RPC 1.2(e) expressly provides for such. All the attorneys

involved in the discussions with the President were expressly authorized to press

their respective positions and were required by Rule 1.3 to do so “zealously and

diligently within the bounds of the law.”

All three attorneys advising Trump did so because they understood that the

President was demanding answers to serious, but unsettled, legal, policy, and

political questions. All of them participated in the Oval Office conference held on

Sunday, January 3, 2021, because they knew that RPC 1.2(a) requires them to “abide

by” their “client’s decisions concerning the objectives of representation, … and [to]

consult with the client as to the means by which [those objectives] are to be pursued.”

And they did. ODC’s opening brief concedes that the President made the

ultimate decision not to appoint Clark as Acting Attorney General. As was his right

and duty as the client, the President made the ultimate decision, deferring to the

majority view of the lawyers gathered in the Oval Office. ODC Br. at 19-21.

14
 III. ODC’ S R E A D I N G O F T H E D.C. R U L E S OF PROFESSIONAL
CONDUCT IS LEGALLY DEFECTIVE.

1. A S A N A SSIS TA NT A TT OR N EY G EN E RA L OF T HE U N IT ED
S TAT ES , C L A RK H AD S T AT UT OR Y A ND C O NS TIT UTI O N AL
D I SC RET I ON AS A P RI NC IP A L “O FF IC ER OF T H E U N ITE D
S TAT ES T HA T IS F U LLY C O NSI STE NT WIT H THE
C OMM A N DS OF D.C. RPC S 1.2 AN D 2.1.
The powers assigned by Congress to an Assistant Attorney General appear in

28 U.S.C. §506: “The President shall appoint, by and with the advice and consent of

the Senate, 11 Assistant Attorneys General, who shall assist the Attorney General in

the performance of his duties.”

All Officers of the United States are removable “at will” by the President.

Seila Law LLC v. CFPB, 591 U.S. 197, 213 (2020) (“The entire “executive Power”

belongs to the President alone.”).

The delegation of executive authority conferred by 28 U.S.C. §506 makes the

eleven Assistant Attorneys General appointed pursuant to its terms available, at the

discretion of the Attorney General, to “assist the Attorney General” in the

performance of the advisory duties imposed by 28 U.S.C. §§511-513; in the

enforcement and litigation duties imposed by 28 U.S.C. §§514 through 519; or in

the implementation of any other duty imposed on the AG by 28 U.S.C. Chapter 31.

That Clark was assigned to over the Environmental & Natural Resources and Civil

Divisions is both legally and constitutionally irrelevant. He could just as easily have

been put in charge of the Civil Rights or Criminal Divisions.

15
 When called upon to advise or otherwise assist either the President or the

Attorney General, an Assistant Attorney General must, under RPC 2.1 “exercise

independent professional judgment and render candid advice,” and has the

constitutional and statutory discretion to use his or her best judgment in situations

that suggest that the advice or counsel to be offered should “refer not only to law but

to other considerations such as moral, economic, social, and political factors, that

may be relevant to the … situation” on which the Attorney General or the President

sought their assistance.

The same holds true regarding the scope of authority conferred by 28 U.S.C.

§506. Each of the 11 Assistant Attorneys General has not only the specific

responsibilities assigned by the Attorney General, but is duty bound by both the

Constitution and RPC 1.2 (d), which provides that “A government lawyer’s authority

and control over decisions concerning the representation may, by statute or

regulation, be expanded beyond the limits imposed by paragraphs (a) and (c).” And

the President so expanded that authority by beginning to seek AAG Clark’s advice

and including him in the January 3, 2021 meeting. RPC 1.2(a) thus requires that

Assistant Attorneys General appointed pursuant to 28 U.S.C. §506, “abide by” the

Attorney General’s “decisions concerning the objectives of” any specific

“representation” to which the AAG is assigned, “… and [to] consult with the client

as to the means by which [those objectives] are to be pursued.”

16
 2. B E C AU SE AN A S SIST A NT A TT O R NE Y G E NE RA L H AS
S TAT U TO RY A ND C O NS TI TUT IO N A L A UT H OR IT Y T O
E XE RC IS E “I N DE PEN DE NT P R OF ES SIO N AL J UD G ME N T ,”
ODC’ S A R G UM E NT T HA T AAG C LA RK W AS R E Q U IRE D
TO D EF ER T O THE F A CT UA L F IN DI N G S OR L EG A L
C ON CL US IO NS O F O T HE R J US TI CE D EP AR TME NT
P ERS O NN EL W O U L D C RE AT E A C O N FLI CT OF I N TE RES T
U ND ER D.C. RPC S 1.7( B )(2), (3), A N D (4).
An AAG has ethical duties to the President and to any agency, department or

official whose legal interests the Attorney General entrusts to the AAG’s care. In this

case, Assistant Attorney General Clark had at least three distinct areas of

responsibility under 28 U.S.C. §506. The Attorney General initially assigned him to

serve as Assistant Attorney General for the Environment and Natural Resources, and

later added the authorities and responsibilities of the Assistant Attorney General for

the Civil Division. As one of the 11 Assistant Attorneys General without a statutory

delegation of specific authority28 U.S.C. §§507 (AAG for Administration) and 507A

(AAG for National Security), he was also subject to the call of both the Attorney

General and the President on an “as needed/as assigned” basis.

ODC devotes all its Opening Brief to an argument that Clark was bound by

the Rules of Professional Conduct to defer to findings of fact or conclusions of law

made by lawyers employed by DOJ’s Criminal Division and those employed by the

U.S. Attorney’s office in Georgia. The law and D.C. Rules of Professional Conduct

plainly indicate that an AAG may not defer if he or she has reason to believe that

any of the conditions in Rules 1.2 (misunderstanding of division of authority), 1.3

17
(failure to act with sufficient diligence or zeal), 1.4 (failure to provide adequate

information, 1.7 or 1.8 (conflicts of interest) have occurred.

ODC’s argument that Clark had to accept the views of the U.S. Attorney in

the Northern District of Georgia is particularly nonsensical. Clark had nationwide

jurisdiction as an AAG at Main Justice. Mr. Pak had only limited territorial

jurisdiction. And quick perusal of the DOJ organizational chart shows that both

officials reported to the Deputy Attorney General (then Rosen, also serving as the

Acting AG). The Board can take judicial notice of this point.

https://www.justice.gov/agencies/chart/map.

In the case at Bar, Clark had access to public information produced in the

Georgia Legislature and widely reported in the press that cast doubt on the Criminal

Division’s assertion that it had fully and “actively investigated allegations of

irregularities that might have affected the results” in Georgia. ODC Br. at 1, ¶1. Not

only was he actively engaged in post-election litigation on behalf of the DOJ

(including his very prominent defense of Vice President Pence sued in the Eastern

District of Texas by the Arizona alternate electors and former Representative

Gohmert), he also had knowledge from Georgia and federal election laws that

criminal “fraud” is only one of many “irregularities” that can result in a successful

election contest under GA. Code §21-1-522 (1-4) and federal election laws,

18
including the Electoral Count Act, 3 U.S.C. §15 (2020). The November 9, 2020 also

represented that AG Barr wanted irregularities and not just fraud investigated.

The Committee does not question — and hence concedes — that there was an

attorney-client relationship between the President and Clark. Nor does it question

that an attorney-client relationship existed between the President and the other senior

lawyers in the DOJ and the White House whose testimony figures so prominently in

this case. He argues instead that it was the client — the President — who was obliged

to accept the arguably biased factual and legal conclusions of publicly hostile DOJ

staff attorneys. Richard C. Pilger, Director, Election Crimes Branch, DOJ Criminal

Division resignation email (Nov. 9, 2020) Tr.80. The President is not so obligated.

Federal attorneys work for the President, and are bound, like every other

attorney, to recuse themselves when, in the words of RPC 1.7(b)(4): “The lawyer’s

professional judgment on behalf of the client will be or reasonably may be adversely

affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s

own financial, business, property, or personal interests.” Just as Messrs. Rosen and

Donoghue had every right to suggest that they would resign if Trump did not side

with them, D.C. RPC 1.16, so too did Clark have every right and obligation to advise

the President “zealously and diligently within the bounds of the law.” Rule 1.3(a).

The Committee’s reading of the Rules of Professional Conduct creates a

conflict of interest between an Assistant Attorney General’s duties to a President

19
who directly asks his or her advice, and “the lawyer’s responsibilities to or interests

in a third party or the lawyer’s own financial, business, property, or personal

interests,” including the inevitable fear of political reprisals when ODC allows his

subpoena and disciplinary powers to be hijacked by Senate or House Committee

chairs or staff investigators who want to use them to score political points.

Respondent respectfully submits that the Committee Report &

Recommendation be rejected.

CONSTITUTIONAL ARGUM ENTS

I. CLARK IS IMMUNE FROM THIS DISCIPLINARY ACTION.

Trump v. U.S. held that “the President is absolutely immune from criminal

prosecution for conduct within his exclusive sphere of constitutional authority.” 144

S.Ct. at 2238. The allegations against Trump relating to his discussions with DOJ

officials about whether to send the draft letter to Georgia officials and whether to

replace the Acting Attorney General with Clark “plainly implicate Trump’s

‘conclusive and preclusive’ authority’” because the “Executive Branch has

‘exclusive authority and absolute discretion’ to decide which crimes to investigate

and prosecute, including with respect to allegations of election crime.” Id. at 2334

(emphasis added). Referring to the President’s consultations with Clark, the Court

explained:

The President may discuss potential investigations and prosecutions

with his Attorney General and other Justice Department officials to

20
 carry out his constitutional duty to “take Care that the laws be faithfully
executed.” Art II, §3. And the Attorney General … acts as the
President’s “chief law enforcement officer” who “provides vital
assistance to [him] in the performance of [his] constitutional duty to
“preserve, protect, and defend the constitution.”

Id. at 2335 (emphasis added). Further, “Trump’s threatened removal of the Acting

Attorney General likewise implicates “conclusive and preclusive’ Presidential

authority.” Id. Finally, “the indictment’s allegations that the requested investigations

were ‘sham[s]’ or proposed for an improper purpose do not divest the President of

exclusive authority over the investigative and prosecutorial functions of the Justice

Department and its officials.” Id. “Trump is therefore absolutely immune from

prosecution for the alleged conduct involving his discussions with Justice

Department officials.” Id.

These holdings vindicate arguments Clark has made at every juncture of this

case since first responding to ODC’s investigative subpoena in January 2022.

The allegations against Clark here are squarely within the scope of the

President’s absolute immunity. That immunity is “a functionally mandated incident”

of the President’s authority, id. at 2329, which protects the independence of the

Executive Branch in carrying out the President’s core constitutional authorities,

particularly under the Take Care Clause through the DOJ. Trump repeatedly

emphasizes that the purpose of immunity is to protect against the threat of intrusion

on the authority and function of the Executive Branch. Id. at 2330-31; 2331 (“Such

21
an immunity is required to safeguard the independence and effective functioning of

the Executive Branch, and to enable the President to carry out his constitutional

duties without undue caution.”); 2332 (“‘[I]t [is] the nature of the function

performed, not the identity of the actor who perform[s] it, that inform[s] our

immunity analysis.’ Forrester v. White, 484 U.S. 219, 229 (1988).”); id. at 2333-35.

Moreover, the immunity is for the President’s official acts—which can only

be carried out through his subordinates like AAG Clark. As a matter of clearly settled

constitutional law, and as we have contended from the beginning, the D.C. Bar has

no authority to intrude upon the internal deliberations of the President with DOJ over

whether and how to carry out the President’s core Article II authorities. “Congress

cannot act on, and courts cannot examine, the President’s actions on subjects within

his ‘conclusive and preclusive’ constitutional authority.” Id. at 2328 (emphasis

added). Therefore, all charges against Clark must be dismissed.

The exceptionally strong immunity and evidence preclusion rules announced

in Trump would be an empty shell if the protection did not also extend to the very

subordinates with whom the President was consulting in the exercise of “his

‘conclusive and preclusive’ constitutional authority,” conduct that “courts cannot

examine.” Indeed, the rationale for barring evidence of drawn from the zone of

absolute immunity to prove crimes in the presumptively immune or unofficial

categories is because otherwise “the ‘intended effect’ of immunity would be

22
defeated.” Trump, 144 S. Ct. at 2341, quoting Fitzgerald, 457 U.S. at 756. This

makes clear that the Court will not countenance the accumulation of eroding

exceptions and will extend immunity and evidence preclusion where logically

necessary to give the immunity its intended effect. This Board trying to say that

Trump is immune in posing questions and asking legal and factual advice from his

DOJ but that DOJ officials are not immune in responding to those questions would

destroy the purpose of allowing the President to operate unfettered within his core

constitutional responsibilities to take care that the law be faithfully executed.

The DCCA and its disciplinary organs (as court adjuncts) are unquestionably

barred by this rule just as the courts of the United States are barred from intruding

on the exercise of the President’s core “conclusive and preclusive” constitutional

authorities.

1. C L A RK I S E NTI T LED TO A B SO L UT E P R OSE CU TO RI A L

I MMU N IT Y .

The absolute immunity doctrine in Trump is also based in part on prosecutorial

immunity. Clark was involved in investigative steps that were preliminary to

prosecutorial evaluations and for that reason AAG Clark also benefits from absolute

prosecutorial immunity. Nixon v. Fitzgerald, 457 U.S. at 766; Imbler v. Pachtman,

424 U.S. 409 (1976). The Supreme Court in Trump makes this especially clear, when

talking about Trump and Clark’s conduct taken together:

23
 The President may discuss potential investigations and prosecutions
with his Attorney General and other Justice Department officials to
carry out his constitutional duty to “take Care that the Laws be
faithfully executed.” Art. II, §3.

… Trump’s threatened removal of the Acting Attorney General likewise

implicates “conclusive and preclusive” Presidential authority.

Trump, 144 S. Ct. at 2334–35 (2024) (emphasis added). That AAG Clark was

involved directly with the President in the exercise of the President’s “conclusive

and preclusive duties” means that he is equally entitled to the same immunity,

including prosecutorial immunity.

2. C L A RK I S E NT ITL ED Q UA L IFIE D I M MU NIT Y .

Even if the foregoing separate arguments for Trump immunity for core

executive power exercise and absolute prosecutorial immunity were rejected, it

would still be clear that Clark is entitled to qualified immunity under established

law.

In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Supreme Court held that the

Attorney General was entitled to qualified immunity, even though the Court held

that he had violated the Fourth Amendment. By contrast, Clark did not violate the

Constitution in any respect. General Mitchell was entitled to qualified immunity

because the law was not clearly established at the time of his relevant conduct. Here,

the case for qualified immunity is stronger than it was for Mitchell, as it is

undisputed that this is a case of first impression—no lawyer has ever been

disciplined over a draft letter that was never sent. Therefore, there was no violation

24
of any clearly established law. As a result, the Charges must be dismissed as barred

by qualified immunity.

Harlow holds that qualified immunity applies where “an official could not

reasonably be expected to anticipate subsequent legal developments, nor could he

fairly be said to ‘know’ that the law forbade conduct not previously identified as

unlawful” id. at 818 2

The conduct ODC asks to penalize here is conduct that has never previously

been identified as unlawful because there has never been a disciplinary action

against a lawyer for proposing a letter never sent. Moreover, Harlow holds that until

“this threshold immunity question is resolved, discovery should not be allowed.” Id.

Yet here, Clark had to endure months and months where ODC sought discovery

against him via a series of unconstitutional subpoenas. And then, over our strong

objections, he had to endure a two-week trial, broadcast on YouTube, where internal,

confidential Executive Branch testimony was taken in violation of Mitchell and

Harlow. It is quite remarkable that the Committee allowed these unconstitutional

intrusions into the Executive Branch, which it did over our strenuous objections.

Finally, both Mitchell and Harlow entitle Clark to interlocutory appeal of any

adverse decision on immunity, as does Trump itself, which was in an interlocutory

2Nixon v. Fitzgerald, 457 U.S. 731 (1982) also holds that presidential subordinates are entitled to
qualified immunity. id. at 746-47, 750 and recognizes that when prosecutorial powers are
implicated, absolute immunity attaches, even to officials other than the President.

25
posture. In other words, even if this case is not dismissed (as it should be), Clark

must be allowed to seek review of any immunity ruling(s) issued by this Committee

before the Board can proceed to make recommendations on any other issues. Any

other result demotes Clark’s immunity defenses to the level of mere defenses. But

immunity is different because it requires immunity to be pierced first since Clark has

an immunity to being forced to stand trial. The case here should be stayed pending

such appeals. The DCCA’s local rules cannot override the Supreme Court’s absolute

or qualified immunity jurisprudence and the interlocutory appeal rights that attend

to each. We hereby request (1) a separate ruling on absolute and qualified immunity

and relatedly, (2) a stay of any further adjudication by this body pending the

completion of interlocutory appeals.

II. CLARK IS ENTITLED TO AN INTERLOCUTORY APPEAL ON

IMMUNITY.

Under Supreme Court case law and the case law of the District of Columbia,

Clark’s immunity defenses (win, lose, or draw) are protected by an interlocutory

appeal right, which means that all proceedings on issues other than immunity in the

Board (and before that, the Committee) should have been frozen unless and until the

interlocutory appeal rights of Clark had first been allowed to fully run their course.

The Trump decision authorized an interlocutory appeal. U.S. District Court

Judge Chutkan issued an automatic stay of the proceedings in the criminal case

pending the appeal of the immunity issues. United States v. Trump, 706 F. Supp. 3d

26
91 (D.D.C. 2023); Trump, 144 S. Ct. at 2343-44; 2352-54 (Barrett, J., concurring)

(“the President is entitled to an interlocutory appeal of the trial court’s ruling”).

Other authorities for this proposition are legion. Coinbase v. Bielski, 599 U.S.

736, 742 n.4 (2023);Ashcroft v. Iqbal, 556 U.S. 662, 666 (2009); Van de Kamp v.

Goldstein, 555 U.S. 335, 340 (2009); Willkie v. Robbins, 551 U.S. 537, 548-49

(2007); Mitchell, 472 U.S, at 524-27.

ODC and the Board construe the DCCA’s Rules to preclude any interlocutory

appeal in a bar disciplinary case because the rules are silent on that issue and,

because bar discipline cases normally first proceed through a Committee stage and

a Board stage before they reach the DCCA. But this is incorrect. The relevant local

rules are not silent on interlocutory appeals. Instead, they prohibit interlocutory

appeals from discovery orders, quashal of subpoenas, and rulings on admissibility

of evidence of unadjudicated acts. D.C. Court of Appeals Rule XI, §8(g); §18(c);

Board Rule 3.15; and Board Rule 9.8(c).

If the Court and/or the Board had intended to foreclose all interlocutory

appeals, then they would have said so rather than doing so in three specific situations

as addressed across four separate rules. The limited scope of the rules prohibiting

interlocutory appeals implies they are permissible in other instances. There is no per

se bar here, and the positive right to an interlocutory appeal is manifest in the

Supreme Court’s immunity doctrines, which are binding on the Board in any event.

27
In the event of a conflict between the rule of the DCCA and the Supreme Court’s

rulings clearly providing for interlocutory appeals of immunity rulings, the latter

must prevail.

The DCCA has repeatedly allowed interlocutory appeals of immunity rulings.

Barnes v. United States, 513 A.2d 249, 250 n.4 (D.C. 1986). In 2002, the DCCA

allowed an interlocutory appeal under the collateral order doctrine based on a claim

of First Amendment immunity. Heard v. Johnson, 810 A.2d 871 (D.C. 2002).3 The

Court relied on Mitchell and held it of no moment that the interlocutory appeal did

not fall under any of the statutory categories in Section 11-721. Id. at 876 n.2.

The DCCA has also held that interlocutory appeals can also be taken to protect

the rights of third parties. In re G.B., 139 A.3d 885 (D.C. 2016). Here, Clark has

been instructed by a lawyer for Trump—twice—to take executive privilege and once

to also take (1) law-enforcement privilege, (2) deliberative process privilege, and (3)

attorney-client privilege. These privileges and the Trump evidence-exclusionary rule

present similar issues. Clark’s invocation of these privileges protects third-party

rights—the rights of the Executive Branch, including the President and the Justice

Department. Walter E. Lynch & Co. v. Fuisz, 862 A.2d 929, 931-32 (D.C. 2004).

3
Mr. Clark also advanced a First Amendment Petition Clause defense, specifically, his right to
hold views of the 2020 election and seek for those to be redressed by his DOJ superiors and by the
President. This First Amendment right could be expressed privately, within the sanctums of the
Executive Branch, under the Trump decision.

28
 We also note that this Court permits interlocutory appeals are from agency

decisions4 when important constitutional or statutory rights are violated. Capitol Hill

Restoration Soc’y v. Zoning Comm’n, 287 A.2d 101, 106 (D.C. 1972) (“The courts

appear to have formulated the general rule that a party may bypass established

avenues for review within the agency only . . . where the agency has very clearly

violated an important constitutional or statutory right.”) (cleaned up). The rights to

both Trump absolute immunity and evidence exclusion and to qualified immunity

are all important rights arising under the Constitution that should override the

doctrine of exhaustion of administrative remedies per Capitol Hill Restoration

Society.

III. ODC’ S E V I D E N C E I S I N A D M I S S I B L E .

A second decisive element of Trump is that no evidence may be introduced to

prosecute conduct that would intrude upon the President’s exercise of his core

constitutional authorities. “If official conduct for which the President is immune may

be scrutinized to help secure his conviction, even on charges that purport to be based

only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated.”

Id. at 31. “What the prosecutor may not do, however, is admit testimony or private

4
The Committees and the Board should be considered the functional equivalent of administrative
agencies. ODC has argued that the Board and Committees are not agencies under D.C. Code § 11-
722. But Section 11-722 does not define “agency” and does not preclude treating the Committee
and the Board as agency for these purposes.

29
records of the President or his advisers probing the official act itself.” Id. at 2341

n.3 (emphasis added).

Yet ODC’s case in chief consisted exclusively of such prohibited evidence

from Donoghue, Rosen, and Philbin. They testified to their conversations with the

President (alone or with Clark), with each other, and with Clark. Such evidence

unconstitutionally intrudes on the President’s exercise of his core-constitutional

authorities and is inadmissible. We filed two pre-trial motions to exclude that

evidence on precisely such grounds—now fully vindicated by Trump—but both

were wrongly denied.5 Excluding this evidence, the case against Clark fails for lack

of evidence and should be dismissed.

A retrial would be futile because ODC cannot carry its burden of proof by

clear-and-convincing evidence without the impermissible evidence (as it failed even

with it— below), and so dismissal is appropriate. If the futile act is nevertheless

deemed required by the Board, it must be before a new Committee untainted by

hearing such a large volume of inadmissible and prejudicial evidence.

The testimony of ODC’s witnesses against Clark, as well as any testimony of

Clark, is inadmissible because it falls squarely within the scope of executive

5 Respondent’s Motion in Limine to Exclude Evidence Within the Scope of Executive, Law
Enforcement, Deliberative Process, and Attorney-Client Privileges (Nov. 21, 2023) and Motion in
Limine to Exclude Evidence and Argument That Would Intrude on the Take Care Clause and the
Opinion Clause (Nov. 22, 2023).

30
privilege, law enforcement privilege, the deliberative process privilege, and

attorney-client privilege as asserted by former President Donald J. Trump. The

testimony of the witnesses against Clark is inadmissible because each witness is

professionally bound to maintain the confidences and secrets they obtained in the

course of their respective appointments as government lawyers unless and until a

court having jurisdiction of the controversy grants them permission to do so. RPC

1.6 (a, g, k), cmt. 28.

There is no dispute in this case that all of the evidence against Clark was

within the scope of the President’s “exclusive and preclusive” authorities when the

communications at issue in this proceeding occurred, and therefore cannot be

reviewed in any court under Trump, including this adjunct body to the DCCA.

The response of the ODC and the Committee to this argument is that Clark is

not Trump and therefore enjoys no protection from Presidential immunities and

evidence preclusions. But is plain and obvious that those immunities and evidence

preclusions would be made a dead letter if everything that is forbidden as to the

President were permitted as to his closest advisors with whom he is engaged in

discussions about the exercise of his “exclusive and preclusive” authorities. The

President would not be able to get the candid advice he needs to perform his duties.

The overwhelming logic of this point is precisely why, in the superseding

indictment Special Counsel Smith obtained against Trump in the U.S. District Court

31
for the District of Columbia, references to AAG Clark (previously unindicted

coconspirator 4) were removed. United States v. Trump, No. 23-cr-00257-TSC, Dkt.

226 (Aug. 27, 2024). Similarly, Justice Merchan, presiding over the New York

criminal trial against Trump postponed sentencing to consider motions practice,

which he has not ruled upon, that the testimony of Hope Hicks about, inter alia, an

Oval Office meeting with Trump must be excluded and prejudiced the conduct of

the trial. People v. Trump, Reply Br., No. 71543-23 (Sup. Ct. N.Y., N.Y. County)

(July 31, 2024).

1. E XE CU TI VE P RI VI LEG E

Executive privilege is a legal doctrine essential to the abilities of the President

to perform the duties of his office. Executive privilege allows a President to protect

from disclosure “documents or other materials that reflect presidential

decisionmaking and deliberations and that the President believes should remain

confidential.” In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). The privilege

is “not for the benefit of the President as an individual, but for the benefit of the

Republic.” Nixon v. GSA, 433 U.S. 425, 499 (1977). Former Presidents retain the

right to assert executive privilege over documents generated during their

administrations. id. at 449, 451.

Former Trump made such an assertion specifically with respect to Clark by a

letter to Clark from Douglas Collins, then an attorney for Donald Trump,

32
Respondent’s Notice of Filing January 15, 2024.

On January 4, 2024, we received a written instruction from Trump’s counsel

renewing his prior assertion of executive privilege. Clark is obliged by the D.C. Bar

Rules and the Constitution of the United States to follow that instruction. RPC 1.6.

While prior to Trump, a former President’s invocation of executive privilege

could, in some circumstances, be overridden, after this landmark decision, all of that

has been swept away. Trump contains no discussion of waiver, and no discussion of

any balancing test. Instead, it is a per se categorical exclusion that bars all of ODC’s

evidence in this case.

Even before Trump, the Supreme Court raised serious questions about the

Biden Administration’s purported waiver of Trump’s executive privilege and went

out of its way to hold that whether a sitting President could waive a former

President’s executive privilege was an open and unresolved question. Trump v.

Thompson, 142 S. Ct. 680 (2022). id. at 680 (Kavanaugh, J., respecting denial of

petition). The nightmare scenario posited in U.S. v. Nixon and reiterated by Justice

Kavanaugh in Trump v. Thompson is exactly what happened in this case when details

of the confidential deliberations at issue were reported in the New York Times on

January 22, 2021, only two days after the end of the Trump Administration.6 “[T]he

6Katie Benner, Trump and Justice Dept. Lawyer Said to Have Plotted to Oust Acting Attorney
General, NEW YORK TIMES (Jan. 22, 2021), available at

33
consequences for the presidency would be severe.” Id.

All of this was discarded by the Committee. This is a wildly improper use of

the Bar’s disciplinary authority.

The propriety of AAG’s Clark’s conduct as a senior DOJ lawyer is a matter

within the exclusive authority of the Article II Executive Branch. DOJ has an Office

of Professional Responsibility to regulate and discipline its lawyers. Clark’s service

to the government was always terminable at the will of the President. This preserves

federal supremacy, immunity, federalism and separation of powers interests, along

with any applicable presidential communications privileges while ensuring there is

a means of disciplining lawyers. Clark has never contended that he operated in an

ethics-free zone, only that the D.C. Bar was not the proper enforcement authority.

At no time did DOJ refer this case to ODC or to any part of the D.C. Bar. Nor could

a referral have been directly to a court because AAG Clark’s letter never left the

confines of the Executive Branch, except by improper leak, and AAG Clark did not

file a relevant brief or make an oral representation to a court.

There is no authority that an administrative body, much less a bar discipline

Committee, has authority to adjudicate whether an invocation of presidential

communications privileges has been overcome by the need for the evidence in an

https://www.nytimes.com/2021/01/22/us/politics/jeffrey-clark-trump-justice-department-
election.html (last visited Feb. 14, 2024).

34
administrative evidentiary hearing. This alone warrants reversal and dismissal of this

case.

The purported waiver of privileges in what we call the DOJ’ “non-Touhy

Touhy clearance letters” was arbitrary, capricious, and contrary to law, and rests on

a premise the Supreme Court in Trump v. Thompson held was open and unresolved,

i.e., that a sitting President can effectively waive his predecessor’s privileges, and

that was decisively repudiated in Trump v. U.S. DOJ is, and has been, applying a

double standard in its resolution of Touhy requests.

The Committee and the Board should not be party to an unauthorized erosion

of the constitutional privileges attendant to the Office of the President. The

Committee should not have received evidence that was acquired improperly.

2. D EL IB ER ATI VE P R OC ESS P R IVI LE GE

The deliberative process privilege is a subset of executive privilege. U.S. Fish

& Wildlife Service v. Sierra Club, Inc., 592 U.S. 261, 267 (2021) (USFWS). The

rationale for the deliberative process privilege is the same as for executive privilege,

to encourage candor in internal deliberations to improve decisionmaking by reducing

the chilling effect from fear of disclosure. Id.

“[T]he determinative fact is not their level of polish—it is that the

decisionmakers at the services neither approved the drafts nor sent them to the

EPA.” Id. (Emphasis added). “‘Courts should be wary of interfering’ with drafts that

35
‘do not ripen into agency decisions.’” Id. at 272, citing NLRB v. Sears, Roebuck &

Co., 421 U. S. 132, 151 (1975).

The USFWS court’s rationale fits like a glove over the draft letter and the

deliberations regarding it that are at the heart of this case. An attorney cannot be

properly disciplined who takes a losing position in an environment in which candid

and vigorous discussion of differing points of view is sheltered from disclosure

because preserving confidentiality is essential to the “faithful execution” of the

office of the President and the well-being of the Republic.

This case is tantamount to punishing a pure thought crime, which is another

reason beyond the Petition Clause (raised above) why this case violates the First

Amendment. “When Government asks to use its full power, including the criminal

law, to command where a person may get his or her information or what distrusted

source he or she may not hear, it uses censorship to control thought. This is unlawful.

The First Amendment confirms the freedom to think for ourselves.” Citizens United

v. FEC, 558 U.S. 310, 356 (2010). AAG Clark had the power to think for himself.

As did Trump. And it is precisely that freedom that ODC asks to punish, insisting

that AAG Clark’s DOJ superiors established an orthodoxy he was not free to

question. Moreover, from the standpoint of the ODC, the President’s final decision

was the correct decision, and it resulted from exactly the type of vigorous but

confidential internal debate that the various presidential communications privileges

36
are intended to foster. Under the circumstances, it would be perverse to destroy the

privilege regime that yielded a result that ODC finds congenial in order to punish

dissenting thought by one of the participants. The chilling effect on future

deliberations would be substantial, and the quality of decisionmaking would

suffer—all to the detriment of the Presidency and to the country.

3. L AW E NF OR CE ME NT P RI VI LEG E

The charges against Clark similarly inevitably intrude into material covered

by the law enforcement privilege. Trump, 144 S.Ct. at 2334 (“The Executive Branch

has “exclusive authority and absolute discretion” to decide which crimes to

investigate and prosecute, including with respect to allegations of election crime.”)

Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1136, 1341 (D.C. Cir. 1984);

Kay v. Pick, 711 A.2d 1251, 1256 (D.C. 1998); Black v. Sheraton Corp. of America,

564 F.2d 531 (D.C.1977).

Trump confirmed the federal law enforcement role regarding the election.

Accordingly, this case impermissibly intrudes on information protected by the law

enforcement privilege that is no business of the D.C. Bar’s disciplinary processes.

4. A TT O R NE Y -C LI EN T P R IV IL EGE

In the District of Columbia, and everywhere else, the attorney-client privilege

is recognized in order to foster candid communications between the attorney and the

client and to foster greater compliance with the law. Adams v. Franklin, 924 A.2d

37
993, 998–99 (D.C. 2007) (emphasis added)

In this case, both the testimony and the documents that ODC introduced are

obviously within the scope of the attorney-client privilege. The former President has

expressly invoked the attorney-client privilege. He has not waived it. It is not

President Biden’s to waive, nor Clark’s, nor that of the other witnesses ODC called.

Having been instructed by Trump to maintain and assert the privilege, Clark has a

professional responsibility enforceable by the ODC to do so. RPC 1.6, cmt. 28. In

simple terms, ODC cannot compel Clark to violate this rule or solicit attorney

witnesses to violate this rule in the course of attempting to impose discipline on

Clark for violating another. ODC cannot be allowed to solicit wholesale violations

of RPC 1.6 and wholesale repudiations of the attorney-client privilege by every

witness it puts on the stand and via the key documents on which it rests its case.

Allowing the enforcement arm of the D.C. Bar to repudiate the very rules it is

supposed to enforce to destroy Clark would compound the ironies and internal

contradictions of this case beyond the imagination of Kafka himself.

IV. THE IMPACT ON THE PROFESSION OF DISCIPLINING A

LAWYER OVER A CONFIDENTIAL, UNSENT DRAFT

ODC and the Committee both failed to properly consider the impact on our

profession of opening up confidential internal deliberations and unsent drafts to bar

discipline. As we noted above, based on the accumulated wisdom of the centuries,

such matters were never previously cognizable as matters of bar discipline. The

38
structure of the RPC on confidentiality is to encourage the free, frank, and

confidential internal exchange of information, advice, theories, and arguments by

lawyers and their clients. Lawyers have a manifest professional responsibility under

RPC 2.1 to give their best professional judgment to the client and their colleagues.

The more difficult and important the problem, the more important this policy is. The

long line of cases on executive privilege fully explain that the Presidency requires

confidential and privileged advice in order to function. But the rule is not limited to

the Oval Office. It covers any legal matter in which a client asks legal advice.

If lawyers had to worry about professional discipline for proposing an

argument with which their colleagues disagree, the candid exchange of advice and

information would be destroyed or at least substantially curtailed, especially in

government where officials often grasp for any advantage against their internal rivals

by leaking. Were it not for this tendency, the coverage of government in major

newspapers would dwindle to nothing. The ill-advised precedent of the Committee’s

recommendation would smash the policies promoted by the overlapping

confidentiality doctrines handed down over centuries and eviscerate the ability of

lawyers to serve their clients and the ability of the profession to serve the public.

Such a prospect is very gravely to be guarded against but was instead tossed aside.

No member of this Board should wreak such havoc on the foundation of how the

profession works. Prudence and judgment must win out over passion and prejudice.

39
Yale Law Professor E. Donald Elliott testified as an expert for Clark that if he were

disciplined, it would have “a devastating effect” on the candid dialog that needs to

occur inside agencies. Tr.710.

V. THE COMMITTEE ERRONEOUSLY REQUIRED CLARK TO

TAKE THE STAND IN THE FACE OF HIS VALID FIFTH
AMENDMENT INVOCATION.

Although bar discipline cases are not criminal cases, this Court has long

described them as quasi-criminal and afforded respondents more rights than civil

litigants. In re Artis, 883 A.2d 85 (D.C. 2005). One of the most important protections

for criminal defendants is the absolute right not to take the stand which Clark was

not afforded by the Committee.

To be sure, as the Committee’s report points out, the Court of Appeals has

previously held that disciplinary respondents must invoke the Fifth question-by-

question wile on the stand. In re Barber, 128 A.3d 637 (D.C. 2015). However, unlike

Barber, Clark offered to stipulate that he would invoke the Fifth to all of ODC’s

questions in order to allow ODC to argue on appeal that the Committee should have

taken an adverse inference. It was therefore unnecessary to require Clark to actually

take the stand for no other reason than to repeatedly invoke his Fifth Amendment on

a live YouTube stream. Compare Ethics Opinion 358 (unethical to call witness

claiming the Fifth before congressional committee for no substantial purpose other

than to cause embarrassment, burden, or delay).

40
 In addition to public embarrassment, forcing Clark to the stand also resulted

in adverse findings in the Committee report. R&R at 201 (“We were also concerned

ourselves about Clark’s demeanor during the hearing ... he was at times

argumentative, even as he asserted privileges not to answer questions.”); Id. at 203

(describing Clark’s demeanor as “troubling” and stating that “[Clark] was angry at

questions to which he responded by asserting privilege.”); Id. (describing Clark as

“annoyed, or even angry, when asked questions to which he was claiming

privilege”).

To begin with, these findings are highly subjective and not supported by

substantial evidence. How exactly does one claim a privilege “angrily” for example?

Is the Committee implicitly positing a requirement that one must only claim the Fifth

with shoulders hunched and eyes downcast? More importantly however, these

findings were only possible by an unconstitutional infringement on what should be

recognized as Clark’s absolute constitutional right to decline to take the stand, at

least where he offered to stipulate to his answers. Compare Wong Sun v. United

States, 371 U.S. 471 (1963) (fruit of the “poisonous tree” must be suppressed).

Although the Committee ultimately did not find Clark’s “demeanor” to be an

aggravating factor, the above factual findings remain a permanent part of his record.

ODC, the Board, and the Court of Appeals are free to draw upon them to Clark’s

detriment (unless the Charges are dismissed on one or more grounds, including that

41
private actors cannot constitutionally make factual findings shown deference by a

court as that constitutes conferring governmental power on such private actors).

Clark therefore requests that the hearing be vacated as conducted in violation

of Clark’s Fifth Amendment rights. It is no surprise that he would invoke them, given

the Board’s and Committee’s refusal to defer the case until the Fulton County case

is complete, that he had invoked them to the January 6 Committee, and that he had

to spend years litigating against an unconstitutional set of subpoenas ODC issued to

him as the DCCA ruled on March 15, 2024 against ODC. Alternatively, Clark

requests that the examination of him be stricken from the record as the fruit of

unnecessary and unconstitutional action by the Committee and also that all

references to Clark’s demeanor also be stricken.

VI. THIS DISCIPLINARY ACTION VIOLATES THE SUPREMACY

CLAUSE.

Under the Constitution, the President of the United States, not the Attorney

General, is the chief law enforcement officer. U.S. Const., art. II, §3 (the President

“shall take Care that the Laws be faithfully executed ….”); Trump v. U.S., 144 S.Ct.

at 2334-5. “As we have explained, the President's power to remove ‘executive

officers of the United States whom he has appointed’ may not be regulated by

Congress or reviewed by the courts.” Id. at 2335 The Constitution vests all Federal

law enforcement power, and hence prosecutorial discretion, in the President. The

President’s discretion in these areas has long been considered “absolute” and

42
unreviewable. United States v. Armstrong, 517 U.S. 456, 464 (1996); United States

v. Nixon, 418 U.S. 683, 693 (1974); generally, S. Prakash, The Chief Prosecutor, 73

GEO. WASH. L. REV. 521 (2005). “[T]he Executive Branch has “exclusive authority

and absolute discretion” to decide which crimes to investigate and prosecute,

including with respect to allegations of election crime.” Trump, 144 S.Ct. at 2334.

The Attorney General and other DOJ lawyers such as the Respondent exercised

discretion delegated to them by the President subject to his supervision. They are

“the hand” of the President for the discharge of these authorities. Ponzi v. Fessenden,

258 U.S. 254, 262 (1922).

The has the right to receive full and frank advice and information from his

advisors. The Opinion Clause imposes on senior federal officers like Respondent a

reciprocal duty to provide such advice upon request. U.S. Const., art. II, §2, cl. 1

(Opinion Clause); 28 U.S.C. §506 (Assistant Attorney Generals, like Clark, to be

appointed by President with advice and consent of Senate); OLC Opinion, State Bar

Disciplinary Rules as Applied to Federal Government Attorneys (Aug. 2, 1985)

(“Rules promulgated by state courts or bar associations that are inconsistent with the

requirements or exigencies of federal service may violate the Supremacy Clause.”),

available at https://tinyurl.com/56bft7sb, last visited (Sep. 1, 2022).

Respondent here did not appear before a Court (inherently subjecting himself

to its supervisory jurisdiction) in the District of Columbia; nor did he misrepresent

43
some fact at oral argument. This case entails an organ of the D.C. government

second-guessing confidential internal deliberations at the highest level of the

Executive Branch, including directly with the President himself in the Oval Office,

regarding how to carry out the President’s core authorities under Article II. For a

State to try to do that would be a flagrantly unconstitutional violation of federalism

and the Supremacy Clause. Even assuming D.C. is operating here as the analogue to

a State (which we dispute), then it is subject to the Supremacy Clause and the

Charges should be dismissed as an unconstitutional invasion of core Article II

authorities of the President.

VII. A L T E R N A T I V E L Y , T H I S D I S C I P L I N A R Y A C T I O N V I O L A T E S
THE SEPARATION OF POWERS.

This case entails an organ of the D.C. government second-guessing

confidential internal deliberations at the highest level of the Executive Branch. For

a State to do that would be an obvious violation of the Supremacy Clause as noted

above. For a city government to try to do so (even one that Congress sometimes

treats as if it were a State, like D.C.—though Congress did not do so here) is an even

more patent violation of the separation of powers because DCCA and hence the

Board and Committee descend from Congress’s Article I lawmaking. Either way

(i.e., the District acting as an analogue to a “State” and thereby violating the

Supremacy Clause or the District acting as a creature of Congress and therefore

violating the separation of powers), the Charges should be dismissed.

44
 “Congress cannot act on, and courts cannot examine, the President's actions

on subjects within his “conclusive and preclusive” constitutional authority.” Trump,

144 S.Ct. at 2328. Thus, these proceedings are barred, whether viewed as deriving

from the Article I Branch or as an analogue to a State attempting to regulate the

superior sovereign.

VIII. L A C K OF FAIR NOTICE VIOLATES DUE PROCESS.

Excessively vague statutes or regulations “furnish[] a convenient tool for

‘harsh and discriminatory enforcement by local prosecuting officials, against

particular groups deemed to merit their displeasure.’” Kolender v. Lawson, 461 U.S.

352, 360 (1983) (internal citations omitted). “[A] fair warning should be given to the

world in language that the common world will understand, of what the law intends

to do if a certain line is passed.” Arthur Andersen, LLP v. United States, 544 U.S.

696, 703-704 (2005) (cleaned up). “The due process clause thus ‘prevents …

deference from validating the application of a regulation that fails to give fair

warning of the conduct it prohibits or requires.’ Gates & Fox Co. v. OSHRC, 790

F.2d 154, 156 (D.C. Cir. 1986).” General Elec. Co. v. EPA, 53 F.3d 1324, 1328, 1329

(D.C. Cir. 1995) (“Of course, it is in the context of criminal liability that this ‘no

punishment without notice’ rule is most commonly applied.); U.S. v. National Dairy

Corp., 372 U.S. 29, 32–33 (1963) (‘[C]riminal responsibility should not attach where

one could not reasonably understand that his contemplated conduct is

45
proscribed.’).”).

That no lawyer has ever been disciplined over an unsent draft makes this case

a textbook example of the violation of the due process right to fair warning. The duty

of the Board is therefore to stop the violation of Clark’s constitutional rights and

dismiss this case.

IX. CLARK WAS DENIED EQUAL PROTECTION.

The fact that Clark is being disciplined for conduct that no one else in the

District of Columbia has ever been disciplined is self-evidently a violation of his

rights to equal protection. U.S. v. Armstrong, 517 U.S. 456 (1996). “[T]he decision

whether to prosecute may not be based on ‘an unjustifiable standard such as race,

religion, or other arbitrary classification.’” Id. at 464. quoting Oyler v. Boles, 368 U.

S. 448, 456 (1962). “The requirements for a selective-prosecution claim draw on

‘ordinary equal protection standards.’ The claimant must demonstrate that the federal

prosecutorial policy ‘had a discriminatory effect and that it was motivated by a

discriminatory purpose.’” U.S. v. Armstrong, 517 U.S. at 465, citing Wayte v. U.S.,

470 U. S. 598, 608 (1985).

The record in this case is replete with evidence of selective prosecution based

on partisan political classification. The investigation was initiated in response to a

46
complaint from a highly partisan Democrat, Senator Richard Durbin.7 At the outset

of this case, ODC threatened Clark through undersigned counsel that he would

“ratchet up the sanctions” if Clark exercised his Fifth Amendment rights. Clark’s

position was later upheld by the Court of Appeals earlier this year.

None of the lawyer involved in Vice President Gore’s election challenges in

2000 were subjected to any bar discipline for public filings or arguments in court,

much less those articulated only in unsent drafts and confidential and privileged

internal discussions. None of the Members of Congress who challenged the results

of the 2004 and 2016 election during the electoral count, such as Rep. Jamie Raskin,

have ever been subjected to bar discipline. None of the Members of the House or

Senate who participated in challenging the 2020 election in the electoral count

process have ever been subjected to bar discipline for any public statements or filings

much less private privileged communications.

When it comes to bar discipline over an unsent draft, Clark is literally in a

class by himself because in the entire history of bar discipline (not just in the

District), no case as ever been brought on the transparently risible theory of

attempted dishonesty with respect to an unsent draft. The selective prosecution in

7 Sen. Durbin is the fifth most partisan Senator serving at least 10 Congresses since 1993 according
to The Lugar Center. Bipartisan Index, THE LUGAR CENTER,
https://www.thelugarcenter.org/ourwork-Bipartisan-Index.html (last visited Oct. 25, 2024).

47
this case violated Clark’s rights under the Equal Protection Clause and should be

dismissed.

X. T H E S T R U C T U R E O F T H E DC D I S C I P L I N E P R O C E S S
V I O L A T E S T H E P R I V A T E N O N -D E L E G A T I O N D O C T R I N E ,
THE APPOINTMENTS CLAUSE, AND THE OATH CLAUSE.

This Committee is comprised of three volunteer members—two lawyers (one

the Chair, making all threshold and in-hearing legal rulings) and one lay person. D.C.

Bar Rule XI(4)(e)(4). All three are volunteers. Consistent with the Constitution, none

of them can be invested with federal governmental power because they are not

officers, principal or inferior, of the United States. This means that the Committee

cannot make factual findings to which the DCCA can defer (directly, or indirectly

via the Board). And it is that deference to the Committee, which is the only D.C.

disciplinary body that receives evidence and live direct testimony, that violates the

private nondelegation doctrine. The constitutional problems thus cannot be cured by

the Committee only making recommendations if its findings are shown deference.

Because the separate branches hold each of their powers (legislative,

executive, and judicial) exclusively, the Constitution “permits no delegation” of

federal governmental power. Whitman v. American Trucking Ass’ns, 531 U.S. 457,

472 (2001). No one branch can authorize another entity outside of itself “to exercise

power in a manner inconsistent with the Constitution.” DOT v. Ass’n of Am. R.R.,

575 U.S. 43, 68 (Thomas, J., concurring). This “nondelegation doctrine” prohibits

48
the delegation of any governmental power—legislative, executive, or judicial—

outside of their constitutionally prescribed boundaries. Whitman, 531 U.S. at 472

(legislative); Free Enter. Fund v. PCAOB, 561 U.S. 477, 496–97 (2010) (executive);

Stern v. Marshall, 564 U.S. 462, 482-83 (2011) (judicial).

The “private-nondelegation doctrine” also prohibits Congress or either of the

other two branches from empowering private entities to wield any of the Federal

government’s constitutionally prescribed powers. A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495, 537 (1935).

The overriding concern of the doctrine is that Congress cannot delegate away

powers given it by the Vesting Clauses, a limitation necessary to preserve

governmental accountability to the governed. Ass’ns of Am. R.R., 575 U.S. 43, 57,

61-62 (Alito, J., concurring). “When citizens cannot readily identify the source of

legislation or regulation that affects their lives, Government officials can wield

power without owning up to the consequences.” Id. at 57. The Constitution’s

carefully crafted process for making and executing laws includes “many

accountability checkpoints” that exist to protect liberty, and it would “dash the whole

scheme” if these powers could be siphoned off to “an entity that is not constrained

by those checkpoints.” Id. at 61; INS v. Chadha, 462 U.S. 919, 959 (1983).

In Schechter Poultry, 295 U.S. at 521-23, the U.S. Supreme Court

emphatically rejected the proposition that “Congress could delegate its legislative

49
authority to trade or industrial associations.” Id. at 537. The Court further

pronounced that “[s]uch a delegation of legislative power is unknown to our law,

and is utterly inconsistent with the constitutional prerogatives and duties of

Congress.” Id. A year later, the Court invalidated a similar law that gave certain

private coal miners and producers the power to set wage-and-hour requirements.

Carter v. Carter Coal Co., 298 U.S. 238, 310-11 (1936), holding that conferring to

a private entity the government’s regulatory power “is legislative delegation in its

most obnoxious form.” Id. at 311. The Court reinforced Carter Coal’s holding that

the Constitution “prohibits any such delegation of [regulatory] authority” to private

entities in Ass’ns of Am. R.R., 575 U.S. at 51. In his concurrence, Justice Alito added

that “[w]hen it comes to [delegating regulatory authority] to private entities … there

is not even a fig leaf of constitutional justification.” Id. at 62 (Alito, J., concurring).

In short, the Constitution forbids the vesting of its governmental powers into

private entities. The Committee (and the Board) are private entities because they are

not made up of federal officers who take on Oath Clause obligations. Instead, they

are a form of private self-policing by the D.C. Bar in its capacity as a group of

professional lawyers—or, as to lay members, is also designed to include public

representation to try to protect client interests. Thus, the Committee and the Board

are a delegation by the DCCA to a private body and therefore entirely ultra vires.

50
 Shortly before the hearing began, we moved for a hearing on threshold issues

concerning Committee members to be clarified so that we could elicit additional

facts about the structural constitutional problems with the Committee’s makeup of

private citizens, extending to whether they took oaths and how they came to be on

the Committee. T-783. We did this to try to show that as private citizens there are no

public disclosures required of the Committee volunteers that would allow Clark to

exercise his due process rights to seek recusal if appropriate. This is not a problem

when Judges are assigned to cases because they must make public financial

disclosures and they generate a body of readily accessible decisions.

Impatient to allow us to pack the private nondelegation argument and how the

use of volunteers created a compounding Due Process Clause problem by shielding

information about the volunteers from review by attorney Respondents, the Chair

invoked Board Rule 7.22 to deny the motion. Tr.783. But Rule 7.22 cannot block

raising the private nondelegation doctrine. That Rule simply has nothing to do with

the private nondelegation doctrine. Moreover, we also submit that the use of

volunteers does create a further structural constitutional problem by denying the

creation of judicial-like disclosure reports. Rule 7.22 is not designed to address that

due process problem either. Nor is it designed to prevent a Respondent from

inquiring into whether the Committee Members took an oath as mandated for

government officials at all levels pursuant to the Oath Clause of the Constitution.

51
 Finally, Clark was prepared to present argument on this constitutional issue at

the hearing but the Chair repeatedly blocked him from doing so, denying him the

right to represent himself, which is also unconstitutional and an abuse of discretion.

Making private nondelegation arguments and related due process arguments, in

Clark’s capacity as an attorney for himself, would not have risked waiver of Fifth

Amendment privilege. Nothing challenging the composition of the Committee and

Board process (since the Board as nine volunteers is equally affected by the same

private nondelegation and due process problems) did not rely on any facts related to

AAG Clark’s conduct inside government. It related only to the structure of this

disciplinary process and to later arising procedural events.

XI. ODC’ S C H A N G I N G T H E O R I E S O F T H E C A S E (F U R T H E R
SUPPORT FOR THE LACK OF FAIR NOTICE)

The Charges allege that certain enumerated statements in the draft letter were

false. The Committee exonerated Clark on those charges, and instead found he

should be disciplined “because of what he did after.” R&R, p. 159.

In a quasi-criminal proceeding like this one, ODC is not allowed to change its

theories midstream, and the Committee is not allowed to find against Clark for an

offense that is not charged in the Specification of Charges.

These are adversary proceedings of a quasi-criminal nature. Cf. In re

Gault, 387 U.S. 1, 33 (1967). The charge must be known before the
proceedings commence. They become a trap when, after they are
underway, the charges are amended on the basis of testimony of the

52
 accused. He can then be given no opportunity to expunge the earlier
statements and start afresh.”

In re Ruffalo, 390 U.S. at 551 (emphasis added).

There is nothing in the Rules of Professional Conduct about “excessive

persisting,” much less anything about it being a violation of Rule 8.4. To the contrary,

Rule 1.3(a) requires “[a] lawyer shall represent a client zealously and diligently

within the bounds of the law[],” and Comment [1] provides that “[t]his duty requires

the lawyer to pursue a matter on behalf of a client despite opposition, obstruction, or

personal inconvenience to the lawyer, and to take whatever lawful and ethical

measures are required to vindicate a client’s cause or endeavor.” It is therefore not

possible to know where the line between permissible and impermissible “persisting”

might lie.

In the removal litigation, ODC contended in Federal court that “ODC has

never accused Respondent of lying to his superiors.”

The theory of the case accepted by the Committee is that proposing the letter

was not dishonest but Clark committed dishonesty by persisting. R&R at 159.This

cannot withstand scrutiny because AAG Clark was part of the Justice Department, it

is undisputed that he consulted materials that were not investigated by Rosen,

Donoghue, or Pak, and he had no obligation to agree with those officials until a truly

final decision was made (which, when made by the President, AAG Clark did abide

by). Indeed, the Rules required AAG Clark to insist, if his legal judgment so

53
demanded, to take the dispute to the level of the President as part of his duties to be

zealous.

Taking a step back, the Board should not penalize a high-ranking DOJ lawyer

for pressing his point of view up to the President as the ultimate decisionmaker. We

certainly would not be here if, for instance, the current AAG of Civil Rights Kristen

Clarke wanted to take a dispute of how to enforce the voting rights laws up past a

relatively more conservative AG Garland to President Biden for resolution.

STATUTORY AND REGULATORY ARGUMENTS

I. THERE IS NO JURISDICTION OVER THIS CASE BECAUSE

O F F L A W S I N T H E P A R T 77 R E G U L A T O R Y T H E O R Y .

1. 28 U.S.C. §530B( A ) AN D I TS I MPLE ME NTI N G

R E G UL AT IO NS 28 C.F.R. § 77.2 D O N OT A PP LY T O TH E
D I STR IC T OF C OL U MBI A .

We recognize that the DCCA held that Section 530B grants disciplinary

authority to the District of Columbia, and that we petitioned for panel and en banc

rehearing on that issue and that those petitions were denied (though that is not

preclusive of continuing to pursue the issue as a denial of rehearing is not

precedential). We also believe this ruling is erroneous and reserve our right to seek

certiorari from the U.S. Supreme Court. We briefly make the following arguments

here to preserve the issue for later appellate review.

Section 530B grants disciplinary jurisdiction over federal attorneys to States

but makes no reference to granting any such authority to the District of Columbia.

54
Congress has demonstrated in many contexts that when it wants to include the

District of Columbia in a statute it does so explicitly, either in a definitional code

section, or by use of phrases like “States, territories or the District of Columbia.” In

the very Omnibus legislation that adopted what is now Section 530B, Congress

repeatedly uses exactly such terms, in conspicuous contrast to the failure to do in

Section 530B.

The DCCA applied the absurdity canon of construction to read D.C. into

Section 530B despite its absence from the text, on the grounds that otherwise the

statute would have an absurd result. This erroneously assumes that federal lawyers

would otherwise be entirely ungoverned by any disciplinary authority. That is simply

not true. Federal lawyers who appear in court are always subject to the inherent

authority of the courts to regulate their conduct. DOJ has an internal disciplinary

process administered by the Office of Professional Responsibility and supplemented

by the Office of the Inspector General. The posited absurdity simply does not exist,

and so rest of the analysis built upon this premise does not follow.

Statutes may not be amended by judges. “To supply omissions transcends the

judicial function.” Nichols v. United States, 578 U.S. 104, 110 (2016) citing Iselin

v. United States, 270 U.S. 245, 251 (1926) (emphasis added). Nichols and Iselin

55
make even a mistake by Congress irrelevant.8 The same rule was applied in Rotkiske

v. Klemm: “Atextual judicial supplementation is particularly inappropriate when,

as here, Congress has shown that it knows how to adopt the omitted language or

provision. 140 S. Ct. 355, 360–61 (2019) (emphasis added); Little Sisters of the Poor

Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2381 (2020).

Here, the omitted language that would include the District of Columbia in

Section 530B was found in multiple other provisions in the very same legislation.

Compare H.R. Conf. Rep. No. 105–825 (Oct. 19, 1998), Title VIII, p. 123 (which

does not include the District of Columbia) with id. at 8, 9, 752, 865, 890, and 902

which do. When “Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v.

United States, 464 U.S. 16, 23 (1983) (cleaned up).

In 1999, as a matter of administrative law, DOJ issued a regulation under

Section 530B(b) that purported to extend the reach of Section 530B(a) to the District

of Columbia. 28 C.F.R. §77.2(h).

8 Even if Congress left the District out of Section 530B by accident, the remedy is to amend Section
530B. A self-evident rationale for excluding D.C. from Section 530B is that that otherwise Senate-
confirmed officials acting under the President’s direct supervision could be subjected to discipline
by potentially hostile inferior federal officials. Congress must speak clearly on such matters.
Gregory v. Ashcroft, 501 U.S. 452, 461 (1991). It did not do so here. West Virginia v. EPA, 142 S.
Ct. 2587 (2022).

56
 A federal agency cannot grant the District a power by regulation that was not

given by the enabling statute. The doctrine of Chevron deference, first articulated in

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 n.9 (1984), was overruled in

Loper Bright Enters. v. Raimondo, 144 S.Ct. 2244 (2024). The DOJ regulations

which purport to extend jurisdiction to D.C. are therefore entitled to no deference

whatsoever. Their plain inconsistency with Section 530(B) precludes any finding of

jurisdiction. The Court of Appeals opinion on jurisdiction under Section 530(B)

should therefore be reconsidered, as it was issued before Loper Bright came down.

In addition, the premise that the D.C. Bar can police internal DOJ

deliberations lacks any clear supporting legislative authority, and therefore fails the

Major Questions Doctrine. West Virginia v. EPA, 142 S. Ct. 2587, 2617 and 2621

(2022) 2621 (Gorsuch, J., concurring) (doctrine protects both separation of powers

and federalism).

In short, the statute by its plain terms, does not grant disciplinary authority to

the District of Columbia. Such authority cannot be conjured out of nothingness by

the expedient of a regulation. Lastly, 28 C.F.R. 77.5 states that no one outside of DOJ

may rely upon the regulations to create any enforceable rights or remedies, and

reinforces the point that where neither Trump nor DOJ complained to ODC about

AAG Clark’s conduct in office, the D.C. Bar disciplinary process has no

constitutional application.

57
 Lastly, Clark was designated the Acting Attorney General, as the Committee

found to be documented by White House visitor logs and as accepted by the House

January 6 Committee and by ODC. DCX-33. This means that AAG Clark’s proposed

position was DOJ’s position for about 9 hours on January 3, 2021 (and thus that

Clark’s views especially cannot be hived off from the views of Rosen and Donoghue,

equating them but not Clark to the Department).

Clark therefore inherently ratified the statements in the draft letter about

DOJ’s view of 2020 election irregularities by virtue of the authority he had been

given by the President. When Mr. Barr left office, that triggered the Federal

Vacancies Reform Act (“FVRA”). Rosen was then the Deputy Attorney General and

could properly serve as the Acting Attorney General. 5 U.S.C. §3345(a)(1). But so

could Clark if so appointed. 5 U.S.C. §3345(a)(2); English v. Trump, 279 F. Supp.

3d 307, 314, 330–333 (D.D.C. 2018) (denying injunctive relief against the Trump

Administration’s designation of then-OMB Director Mick Mulvaney to serve as

Acting Director of CFPB pursuant to FVRA). The FVRA provides that officials

ineligible to serve as acting agency/department heads cannot ratify their acts. 5

U.S.C. §3348(d)(2). But Clark was eligible and did become Acting Attorney General

and hence he possessed the power to ratify for the entire Department all of his acts.

e.g., Wilkes-Barre Hosp. Co., LLC v. NLRB, 857 F.3d 364 (D.C. Cir. 2017) (validly

constituted NLRB’s ratification of its earlier appointment of Regional Director, and

58
Regional Director’s ratification of his own prior even invalid actions); Kajmowicz v.

Whitaker, 42 F.4th 138, 147-48 (3d Cir. 2022) (concerning ratification of a DOJ rule

issued by a former Acting Attorney General even where the Court was willing to

assume that the defendant had shown that the Acting Attorney General was serving

in violation of the Appointments Clause and/or the FVRA) (since Clark was

confirmed by the Senate and his appointment was in accord with the FVRA, so his

appointment as Acting AG was proper both constitutionally and statutorily).

Hence, for all of these reasons the Board lacks disciplinary authority over the

charged conduct of the Respondent and the Charges should be dismissed.

2. E VE N I F S ECT IO N 530B A ND 28 C.F.R. §77.2 G R A N T

G E NE R AL D I SC IPL IN AR Y A UT HO RI T Y , ODC C A NN O T
S AT ISF Y T HEI R P R ERE Q UIS I TES .

Even assuming 28 U.S.C. §530B extends state bar disciplinary jurisdiction

over federal government lawyers, it does so only “to the same extent and in the same

manner as other attorneys in that State.” (Emphasis added). Similarly, the regulation

subjecting lawyers working for the federal government to local bar disciplinary

processes, 28 C.F.R. §77.2(j)(2), does not apply if the local jurisdiction “would not

ordinarily apply its rules of ethical conduct to particular conduct or activity by the

attorney.” (emphasis added).

There is no prior case where Rule 8.4 has been applied to any pre-decisional

discussion among a team of lawyers concerning a draft statement of a proposed

59
position in a letter that, for policy reasons, was never sent. Much less has it ever been

applied to a senior Senate-confirmed DOJ official engaged in law enforcement and

policy deliberations falling within the President’s core Article II authorities at the

highest levels of the DOJ and with the President himself. ODC has been repeatedly

challenged to identify any such case and has never done so — because there is no

such case.

In the words of the statute, discipline has never been applied to “the same

extent and in the same manner” to non-federal lawyers for conduct like that charged

here. Nor, in the words of the regulation, has it ever been applied “ordinarily … to

[the] particular conduct or activity” of non-federal lawyers. In other words, the Bar

cannot meet the prerequisites of the statute or the regulation and therefore has no

jurisdiction to impose discipline in this case. The D.C. Bar has never, much less

“ordinarily,” disciplined a non-federal attorney for the “particular conduct” charged

in this case. Therefore, the Charges exceed the Bar’s jurisdiction even under the

statute and regulation on which ODC relies. This argument, which is an as-applied

challenge to the Charges (and not a facial challenge to the ability to file any Charges

against AAG Clark for his conduct inside DOJ and with the President) was not

disposed of by the DCCA in its panel decision and thus remains fully open.

The Committee’s analysis of this issue retreated to a meaningless level of

generality — “lawyers should not lie.” This is an evasion of the elephant in the

60
middle of this case and of the language of the regulation itself, which requires prior

application to “the particular conduct or activity.” (emphasis added). There has

never been a case like this, so it should be dismissed for lack of jurisdiction under

Section 530(B) and 28 C.F.R. 77.2 according to their own terms. This argument

further reinforces the fair notice problem. Not only do the Charges violate

constitutionally based due process rights to fair notice, the Charges fall outside the

limited grant of disciplinary power pursuant the AG regulations, even assuming the

regulations can delegate such a power in the wake of Loper Bright overruling

Chevron.

II. THE BOARD ERRED BY DENYING CLARK’S REQUEST TO

DEFER THE CASE BASED ON PENDING RELATED CRIMINAL
LITIGATION AND INVESTIGATION

Prior to this case, the Board of Responsibility had a decades-long history of

deferring disciplinary proceedings until after related criminal proceedings resolved.9

The Board departed from this practice in Clark’s case despite one of most well-

grounded Fifth Amendment claims ever asserted in a bar discipline proceeding

which was obviously going to prevent Clark from taking the stand in his own defense

until related criminal proceedings were resolved. The result is a hopelessly one-sided

record which will not allow the Board or the Court of Appeals to arrive at anything

9ODC could not identify a single case were a Respondent proceeded to trial while related
disciplinary proceedings were pending.

61
approaching an accurate understanding of the events at the DOJ in the last weeks of

the prior administration.

The decision to hold a disciplinary hearing while a criminal case on the same

subject matter was pending was not only unwise but also the result of a series of

legal and factual errors by the Board and Chair including the unexpected holding

that the testimony of Jeffrey B. Clark was not substantially likely to help resolve

material issues in the case of In re Jeffrey B. Clark. This holding defies law and

logic.10 The Board should reconsider its decision and hold that the refusal to defer

Clark’s case in accord with decades of established practice deprived him of a fair

trial.

1. T HE B O AR DS D ENI AL W AS B ASE D ON A L E G AL L Y
I NC O RR E CT I NT ER PRE TA TI ON OF R ULE S 4.1 A N D 4.2 B Y
THE C H A IR OF C O MMIT TEE 12

a. The Chair Erroneously Conflated the Different Standards

in Rules 4.1 and 4.2

Two of this Board’s rules deal with requests for deferral. Rule 4.1 applies

“before a petition has been filed” while Rule 4.2 says that after a petition has been

filed respondent can request deferral of his case “based on the pendency of either a

related ongoing criminal investigation or related pending criminal or civil litigation.”

10 Neither the Chair nor this Board questioned the propriety or legality of Mr. Clark invoking his
Fifth Amendment rights. The validity of Mr. Clark’s Fifth Amendment right in this proceeding was
later affirmed by the Court of Appeals. In re Clark, 311 A.3d 882 (D.C. March 15, 2024).

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 Here, Clark filed a post-petition motion requesting 4.2 deferral based on

multiple factors including a pending criminal case against him in Georgia and a

pending federal criminal investigation in which he had already been named an

unindicted co-conspirator, both based on the same basic facts as the disciplinary

case. One of the arguments Clark raised was that the need to preserve his Fifth

Amendment rights would prevent him from testifying in his own defense at the

hearing before the committee. The Chair of the Committee recommended that the

Board deny this request This Board agreed.

However, the Chair recommendation on which the Board’s decision was

based improperly conflated the distinct standards in Rules 4.1 and 4.2. Rule 4.1

allows for deferral where there is a “substantial likelihood” that the related case will

“help to resolve material issues” in the disciplinary proceeding. Rule 4.2. (the post-

petition rule) notably omits the “substantial likelihood/material issues” language and

simply states that a respondent may request deferral “based upon the pendency” of

the related case. Under standard principles of interpretation, it should be assumed

that this omission was deliberate and the drafters intended 4.2 to be broader than 4.1.

Otherwise why have two separate rules? Reading the rules in this way also makes

practical sense.

However, instead of this straightforward interpretation, the Chair conflated

the two rules: “[r]eading Rules 4.1 and 4.2 together, the question presented by

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Clark’s deferral request is whether there is a ‘substantial likelihood that the

resolution of’ the criminal case against Clark ‘will help to resolve material issues’ in

this disciplinary proceeding.” Ex. 1 at 5.

This incorrect interpretation allowed the Chair and subsequently the Board to

justify disregarding not only the Fifth Amendment but many other factors favoring

deferral including the existence of removal proceedings in federal court and the

crushing expense of having to litigate multiple complex cases at once. The Board

should therefore hold that the denial of Clark’s Motion for Deferral was based on a

legally erroneous interpretation of Rules 4.1 and 4.2.

As explained in more detail in the following section, ignoring Clark’s side of

the story has resulted in a permanently flawed record that should not be used to

impose any level of discipline.

b. The Committee Chair Erroneously Limited 4.2 Deferrals

that Are Based on Fifth Amendment Concerns to
Situations Where Failure to Defer Would Create a
Constitutional Violation

Even assuming the correctness of the Chair’s extra-textual imposition of a

“substantial likelihood” requirement on Rule 4.2, the Chair erred a second time by

framing the question as whether “[Rule 4.2] authorize[s] deferral because a

disciplinary hearing may require a respondent to decide whether to assert a Fifth

64
Amendment privilege against self-incrimination.”.11 Ex. at 10. The Chair then went

on to consider whether it would be a constitutional violation to force Clark to choose

between testifying and taking the Fifth, concluding that it would not be.

However, 4.2 is not limited to situations where failing to defer a case would

be unconstitutional. It is equally applicable to situations where, as here, removing

Fifth Amendment obstacles would have a substantial likelihood of resolving material

issues by allowing the Respondent to testify in full. The Chair, and by extension the

Board, therefore committed a legal error by limiting 4.2 deferrals based on valid

Fifth Amendment claims to situations were failing to defer would create a

constitutional violation. In fact, 4.2 deferrals were clearly designed to extend to

situations where allowing time for Fifth Amendment issues to resolve would aid the

search for truth. The Board and Chair therefore committed legal error by limiting

their analysis to whether denying deferral would be unconstitutional, rather than

evaluating whether removing that obstacle to Clark’s testimony would be

substantially likely to help resolve material issues in his case.

11 Mr. Clark’s deferral claim is distinct from his argument below that being forced to choose
between his Fifth Amendment and testifying violated his constitutional rights. This Board can
conclude that it was error to deny Mr. Clark’s deferral request without reaching the constitutional
question.

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 2. T HE B O AR D A B USE D IT S D IS C R ETI ON BY D E N YI NG
C L A RK ’ S M OTI O N TO D E FE R

Somewhat surprisingly, there does not appear to be a single DCCA decision

considering the Board’s denial of a Respondent’s Motion to Defer, which may be an

indication of the liberality with which 4.2 is usually applied in order to achieve

justice. CompareIn re Chadwick, 585 A.2d 798 (D.C. 1991)(“the Board granted

Chadwick’s motion to defer proceeding in this case pending resolution of the State

Bar of California’s proceedings against him.”).

However, Court of Appeals precedent on motions to continue is obviously

highly analogous and provides extremely useful guidance. In United States v.

Gilliam, for example, the Court of Appeals reversed a murder case where the

Superior Court judge had denied a motion to continue the trial for a missing witness.

80 A.2d 192 (D.C. 2013).

Of particular significance in the Gilliam analysis is the extent of the prejudice

to Clark by not being able to testify, as amply demonstrated by the Committee’s final

report. Again and again, the report relies on adverse testimony that Clark would have

been able to address had he been at liberty to do so.

The Committee’s factual findings were based on testimony from witnesses

(Donoghue, Rosen, Philbin) who were on the opposite side of Clark in the

contentious election debate and all of whom later staked their professional

reputations to one extent or another on Clark having been not only wrong but a threat

66
to democracy. The only witness who could have corrected their accusations was

Clark himself who was prohibited from testifying by what was likely the strongest

Fifth Amendment claim ever asserted in a DC Bar proceeding.12

Unfortunately, due to the standard of deference owed to the Committee, these

hopelessly one-sided factual findings are likely forever baked into the record of

Clark’s case and will discredit whatever the ultimate result turns out to be. To prevent

a permanent cloud of doubt from attaching itself to this important, the Board should

engage in frank and honest reconsideration of its denial of Clark’s request to defer

the proceedings.

EVIDENTIARY ARGUMENTS

I. THERE IS NO ACTUAL OR ATTEMPTED DISHONESTY IN

THE LETTER.

1. W H AT C ON STI TU TES D I SH ON EST Y U ND ER R ULE 8.4( C )

For purposes of Rule 8.4(c), “dishonesty may result from conduct evincing ‘a

lack of honesty, probity, or integrity in principle; a lack of fairness and

straightforwardness ….’” In Re Romansky, 825 A.2d 311, 315 (2003). Dishonesty

under Rule 8.4(c) is a lesser standard than fraud, deceit, or misrepresentation. Id.

When the conduct is “obviously wrongful and intentionally done,” intent is

presumed, but where the conduct is not clearly wrongful or is unintentional, ODC

12 It also should be noted that Mr. Clark invoked the Fifth Amendment on the unanimous advice
of his legal team. Therefore, any suggestion that he should have waived his constitutional right
also implies that he should have been compelled to act contrary to legal advice.

67
must additionally prove dishonest intent. Id. Deliberate falsification of documents is

one form of conduct that is “obviously wrongful.” Id.; In Re Ekekwe-Kauffman, 210

A.3d 775, 798-97 (D.C. 2019) (deliberately falsified invoice submitted in a legal

proceeding); In Re Schneider, 553 A.2d 206, 209 (D.C. 1989) (deliberately falsified

and inflated travel receipt). Structured deposits were not obviously wrongful because

the act alone does not demonstrate dishonesty or a fraudulent state of mind.

Romansky, 825 A.2d at 316.

Romansky also discussed the issue of whether reckless conduct can sustain a

finding of dishonesty. Id. at 316. In cases involving misappropriation of funds —

which fall under the rubric of dishonesty — recklessness must be proved by

“conduct sufficient to support an inference that [the respondent] purposedly dealt

with and used the funds owed to [the client] as his own, or else that he consciously

disregarded the risk that those funds would be used for unauthorized purposes.” Id.,

citing In Re Anderson, 778 A.2d 330, 339 (D.C. 2001). “To show recklessness, Bar

Counsel must prove by clear and convincing evidence that [an attorney] consciously

disregarded the risk that her conduct was untruthful or that it would lead to a

misapprehension of the truth.” In re Romansky, 938 A.2d 733, 740 (D.C. 2007)

(“Romansky II”) (cleaned up); In re Dobbie, 305 A.3d 780, 804-5 (D.C. 2023)

(reckless disregard of the truth can sustain a finding of dishonesty) (recklessness

68
found on one charge (refusing to concede a point clearly established in a report) and

not another on which the evidence was in equipoise).

The Court in Romansky I found evidence of dishonesty where an associate’s

time for one client was recorded to another. Id. Even though it was an internal firm

accounting issue and the client to whom the time was falsely recorded did not suffer

any economic harm, the conduct was dishonest because it simply was not true that

the work was done for client to whom it was attributed. Romansky I, 825 A.2d at

317.

In In Re Ukwu, 926 A.2d 1106, 1113-4 (D.C 2007), the DCCA held that

reckless disregard of the truth was sufficient to show dishonesty for purposes of Rule

8.4(c). In that case, the attorney prepared a false employment verification letter and

directed the client to submit it to INS. The Court held this was intentional dishonesty

or, at a minimum, so reckless as to the truth as to constitute a violation of Rule 8.4(c).

2. T HE C O MMIT TEE E RR O NE OU SL Y C ON FL ATE D R E CK L ESS

D I SRE G A RD OF T HE C O N S EQ UE NC E S WIT H R E C KLE S S
D I SRE G A RD O F T R UT H OR F ALS IT Y .

The Committee committed legal error in its application of the recklessness

standard. All of the cases on recklessness cited by the Committee were

misappropriation of client funds cases. In those cases, recklessness accounting for

client funds is treated as recklessness with respect to the truth or falsity of who the

69
money belongs to. However, this body of cases clearly requires recklessness with

respect to truth or falsity.

The Committee finding of recklessness, however, set forth at pp. 182-189 of

the R&R, is not with respect to truth or falsity, but with regard to the strong contrary

positions of Rosen, Donoghue, and Philbin, the risk of a wave or resignations, and

other consequences of sending the letter. These relate to the prudence or imprudence

of the letter, not to truth or falsity. (Reinforcing that what was in dispute, in large

part, was a policy dispute—a personal opinion, which is not a discrete fact that can

be judged true or false.) The relevant charge is attempted dishonesty and so for

recklessness to support the charge, it must relate to truth or falsity.

The error in conflating recklessness with regard to the consequences and with

regard to truth or falsity is on page 154, where the Committee cites In re Ponds, 279

A.3d 357 (D.C. 2022), In re Gray 224 A.3d 1222 (D.C. 2020) and In re Roumansky,

825 A2d 311 (D.C. 2003). Gray borrowed from 57 AM.JUR.2D Negligence §302

(1989) for a general definition of recklessness as a conscious disregard of the risks

or dangers of one’s actions. This is correct as a statement of general tort law, but it

is error to equate reckless disregard for the consequences—such as reckless

driving—with reckless disregard for truth or falsity. The finding of recklessness

made at pp. 182-189 of the R&R is about recklessness with respect to the

consequences and not at all recklessness with respect to truth or falsity.

70
 The Committee found that the evidence “overwhelmingly support[s] the

conclusion that Clark was reckless and that his sincere believe was not objectively

reasonable.” To support that finding, the Committee accepts arguments that Clark

was out of his lane, had no experience in criminal investigations, violated internal

procedures, etc. But the clincher is the finding that “he was oblivious to the risk of

overturning an electoral college vote that had already taken place and plowed ahead

despite numerous warning signs in the days that followed.” Id. at 185. The warning

signs recklessly disregarded were the vehement opposition of Rosen, Donoghue,

Philbin, and other senior legal advisors.

Apart from the legal error of treating recklessness with respect to the

consequences as reckless disregard for truth or falsity, the finding of recklessness

with regard to the consequences is supported by other legal errors or plainly

erroneous analyses of the evidence. The Committee faults Clark for saying in his

transmittal email that he “saw no downsides” to sending the letter. There was no

reference to this in the Specification of Charges. It is obviously an opinion, not a

statement of fact, no matter how much the Committee or the Board may disagree

with that opinion.

The Committee concluded that “Clark made no serious effort to even inform

himself of what the investigations showed. For example, he did not ask to any of the

dozens of files the Department had opened or a single one of the hundreds of

71
interviews the FBI conducted.” R&R at 185. But Donoghue testified that he was not

given access to the investigative files. Tr.228. Because of his evasive and combative

manner of testifying, Donoghue was asked a total of six times whether Clark was

given access to the investigative files. Each time he deflected by saying he instructed

Clark to call the U.S. Attorney in Atlanta, which Clark did not do. id. at 229-231.13

An additional justification for the legally erroneous finding of reckless

disregard of the consequences was the Committee’s conception of the role of the

Justice Department in presidential elections. R&R at 186. This cannot be squared

with Trump, which held that “the Executive Branch has ‘exclusive authority and

absolute discretion’ to decide which crimes to investigate and prosecute, including

with respect to allegations of election crime.” 144 U.S. at 2334 (emphasis added).

Nor can it be squared with Attorney General Barr’s November 9, 2020 memo

authorizing DOJ in investigations of election irregularities. RX559.

The Committee found reckless disregard for the consequences in not

consulting the Office of Legal Counsel and in persisting in the recommendation

despite Engel opposing it in the Oval Office meeting on January 3, 2021. But these

do not constitute proof the legal analysis was invalid or “reckless,” something ODC

13 Additionally, Mr. Clark’s defense of the battery of privileges that apply and his invocation of
the Fifth Amendment prohibit him from testifying to explain that he did ask to the investigative
files and he was never shown them. He was shown only a classified report about foreign election
interference, which Mr. Clark can also not make use of because ODNI refuses to grant access to it
under Touhy.

72
made no effort to do. The supporting legal authorities were laid out in the latter based

on constitutional text and Supreme Court decisions in existence at the time. The

independent state legislature theory was considered in Moore v. Harper, 600 U.S. 1

(2023). A majority of the Court rejected it, but only on June 27, 2023, two-and-a-

half years after AAG Clark drafted his letter. Moreover, a dissent was filed by

Justices Thomas, Gorsuch, and Alito arguing that the majority’s opinion failed to

grappled with the substantial arguments in favor of independent state legislative

power over the Elections Clause (which is parallel in some ways to the Electors

Clause at issue in Clark’s letter). id. at 55-62 (Section II of the dissent). Surely, Clark

cannot be disciplined for taking a position before the law was clarified that three of

nine Justices on the U.S. Supreme Court took.

Ironically, just a few weeks ago, Judge Andrew Cox of the Fulton Superior

Court declared unconstitutional seven rules recently adopted by the State Election

Board. https://embed.documentcloud.org/documents/25223626-seb-rules-struck-

down/?embed=1&responsive=1&title=1 (last visited Oct. 28, 2024). The Court held,

inter alia, that the rules were void because they violated the Elections Clause of U.S.

Const. art. I, §4, cl. 1, which requires that the times, places and manners of holding

Congressional elections shall be specified by the legislatures of the States. id. at 9.

Judge Cox: “ Moore v. Harper, 142 S. Ct. 1089, 1090 (2022) (Alito, J., dissenting

from the denial of application for stay); Democratic Nat’l Comm. v. Wisconsin State

73
Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch, J., concurring in denial of application

to vacate stay); Alexander v. S.C. State Conf: of the NAACP, 602 U.S. 44, 144 S. Ct.

1221, 1258 (2024) (Thomas, J., concurring in part) (quotations omitted).” Id.

Apparently, not even a duly elected state judge regards the question of the

independent legislature doctrine to be entirely foreclosed by Moore. Has Judge Cox

acted unethically?

The Committee’s finding of reckless disregard for the consequences was also

based on Philbin’s testimony that he told Clark there would be riots if the letter were

sent. Tr.187. Philbin’s prediction, which again does not go to truth or falsity, cannot

be given credence. It is pure speculation resting on a causal chain that is irretrievably

broken at multiple points. Among other things, the letter was a very modest

suggestion to a state legislature that they, in their discretion, consider calling

themselves into session to take and consider additional evidence and decide,

whether, in their discretion, they approved of the slate of electors that had been

certified for Georgia. Moreover, on December 7, 2020, Georgia’s Governor and Lt.

Governor had issued a statement that such a special session was not allowed under

state or federal law. R&R. 43. Additionally, Philbin did not testify as, and would

never be qualified, as an expert on the causes and nature of civil unrest. And, to be

clear, what we would be talking about would be unlawful riots violating federal

and/or state laws, such as the deadly Antifa riots in the Summer of 2020 (forcing

74
Trump to evacuate into tunnels beneath the White House) and the J6 riot at the

Capitol. Peaceful protests resulting from independent action to call a special session,

which is what AAG Clark recommended, is obviously not what Philbin feared.

3. C L A RK ’ S S INC E RIT Y P RE CL UD E S A F IN DI N G OF
D I SH O NE STY

Philbin testified that Clark was “100% sincere in his views.” Tr.293. He

elaborated that Clark “felt that he essentially had a duty to do” something about

“something happening that was wrong.” Id. Philbin had told Clark that if he persisted

in his position his career would be destroyed — a prediction that has come true as to

Clark’s ability to return to Kirkland & Ellis as a partner. He agreed that “it would be

fair to say that he [Clark] pursued what he thought was his duty, despite the

likelihood that it would result in the destruction of his career.”

Donoghue testified that “it was clear that he believed these things. He med to

accept what he was being told” and that Clark was sincere. Tr.186.

The definition of sincere precludes there being any dishonesty or attempted

dishonesty. Merriam-Webster defines “sincere” as

1. a: free of dissimulation: HONEST, a sincere interest.

b : free from adulteration: PURE, a sincere doctrine, sincere wine

2 : marked by genuineness: TRUE, sincereness noun.14

14 https://www.merriam-webster.com/dictionary/sincere, (last visited Oct. 27, 2024).

75
 The synonyms of sincere are honest, pure and true. The antonyms are

insincere, false, and artificial. The Cambridge Dictionary similarly defines sincere

as “(esp. of feelings, beliefs, opinions, or intentions) honest; not false or invented.”15

The Britannica Dictionary defines sincere as “having or showing true feelings that

are expressed in an honest way.”16

Sincerity is incompatible with both dishonesty and recklessness, because “to

show recklessness, Bar Counsel must prove by clear and convincing evidence that

[an attorney] consciously disregarded the risk that her conduct was untruthful or

that it would lead to a misapprehension of the truth.” In re Romansky, 938 A.2d 733,

740 (D.C. 2007) (“Romansky II”) (cleaned up) (emphasis added); In re Dobbie, 305

A.3d 780, 804-5 (D.C. 2023) (reckless disregard of the truth can sustain a finding of

dishonesty) (recklessness found on one charge (refusing to concede a point clearly

established in a report) but not as to another where the evidence was in equipoise).

The Committee’s accepted that Clark was sincere, but as discussed above,

found that he was reckless with regard to the consequences. But this is a legally

erroneous view because the charge is dishonesty, not having what the Committee

regarded as a bad idea.

15 https://dictionary.cambridge.org/us/dictionary/english/sincere, (last visited Oct. 25, 2024).

16 https://www.britannica.com/dictionary/sincere, (last visited Oct. 27, 2024).

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 II. THE EVIDENCE DOES NOT SHOW ATTEMPTED
DISHONESTY.

In the criminal law of the District of Columbia, an attempt to commit a non-

crime cannot be punished as a criminal attempt. German v. United States, 525 A.2d

596, 607 (D.C. 1987) (“Legal impossibility occurs when a defendant’s actions, or

actions a defendant causes, even if fully carried out would not constitute a crime.”);

2 Wayne R. Lafave, SUBSTANTIVE CRIMINAL LAW §11.5(a) (3d ed. 2017, 2023

Update) (“If the case is one of legal impossibility, in the sense that what the

defendant set out to do is not criminal, then the defendant is not guilty of attempt.”).

The essence of the attempted dishonesty alleged by ODC is that the letter

proposed DOJ take different positions regarding the election than it had taken up to

that point. Charges at ¶¶ 15-19. But if the letter had been approved and sent, then

ipso facto, it would represent the positions of the Department. The attempt was to do

something that would not be a crime if completed. Therefore, as a matter of law,

Clark cannot have committed attempted dishonesty.

The Committee found the following statements in the letter to be false: (1)

that the DOJ had “identified significant concerns that may have impacted the

outcome of the election in multiple States, including the State of Georgia.” R&R. at

168; (2) that DOJ was reviewing the Ligon Report, R&R at 170; and (3) that two

sets of electors had been sent to Washington D.C. Each of these findings is

insupportable.

77
 The challenged statement that the Department had identified significant

concerns was a proposed position that DOJ might adopt, if it were approved by

Respondent’s superiors, potentially going as high as the President himself. A

proposed position in a pre-decisional discussion draft that is inherently subject to

later approval by superiors cannot be characterized as false or dishonest. If this were

a violation of the Bar rules, no lawyer would ever propose, even confidentially, a

change of position on any topic, which could never be an intended result of Rule 8.4.

In addition, the challenged statements are obviously opinions about the

existence, nature, and significance of the evidence of election fraud and irregularity

and what if anything ought to be done about it. There is an elementary difference

between opinion and fact. Gertz v. Robert Welch, Inc., 418 U. S. 323, 339-340 (III)

(1974) (“Under the First Amendment there is no such thing as a false idea”);

Milkovich v. Lorain Journal Co., 497 U.S. 1, 2 (1990) (“statements [must be]

provable as false”). Opinions, judgments, and policy determinations are incapable

of being proved false in the sense required to show a violation of Rule 8.4 because

they are inherently subjective.

Donoghue’s refrain that DOJ had no role in state administration of presidential

elections was his opinion, contradicted by Former Attorney General Edwin Meese.

Meese, Tr.1529, and incompatible with both the Barr Memo of November 9, 2020

and the decision in Trump that the Executive Branch has jurisdiction over election

78
crimes. Trump, 144 S.Ct. at 2334. Having a different opinion than Donoghue or

Rosen on that topic is not within the scope of Rule 8.4. Will ODC now bring

disbarment proceedings against Edwin Meese for disagreeing with Donoghue?

First, the Committee sloughed off Clark’s evidence from each of his witnesses

that there were sufficient irregularities in the election in Georgia, especially in Fulton

County, to warrant further investigation, saying it did not matter because it was not

proven that Clark was aware of it. It is neither logically nor legally required that

Clark have been aware of each and every one of these matters on or before January

3, 2021. The whole purpose of investigations is to discover what is not known. This

was also the point of the letter — to have the Georgia Legislature engage in further

investigation.

Second, the value of additional investigations was proven by what was later

discovered, but wrongly excluded from evidence, which was sufficient to cast the

outcome of the election into serious doubt. Third, what was later discovered proved

the gross inadequacy of the investigations carried out by DOJ and the factual

predicate upon which Rosen and Donoghue based their rejection of Clark’s proposal.

The finding of falsity in with respect to whether the Department was

considering the Ligon Report is also unfounded. First, this was not charged in the

Specification of Charges. It was an argument made in ODC’s post-hearing brief.

Second, it rests on Donoghue’s position that the issues in the Ligon Report were not

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appropriate for DOJ review and runs afoul of the fact that there is no constitutional

provision, statute, or regulation that forbids what AAG Clark proposed, meaning that

the President could have ordered that course of action, had he chosen to do. Tr.184.

Third, Clark was part of the Department’s leadership, and he did review and consider

the Ligon Report and relied on it in the letter, so the finding is self-refuting. Fourth,

the Barr Memo included investigation of “irregularities” and not just frauds, which

contradicts the premise of this finding. Fifth, Donoghue himself conceded that he

was aware of the report and that it concluded that the election should be de-certified.

Tr.184-5.

The third statement found to be false was that two sets of electors had been

sent to Washington, D.C. The premise is that that letter said two sets of certified

electors had been sent. The letter never says that and indeed its entire gist and context

is that the Democrat electors had been certified but that the Legislature might in its

discretion might want to convene itself to consider whether those should be

Georgia’s electors. The Committee misses this point and gets the history of the 1960

election in Hawaii wrong as well. Contrary to footnote 22 on page 165, “[t]he acting

Governor certified the Republican electors on November 28, 1960, but a court

decision at the end of December affirmed the validity of the December 13 recount.

The new Democratic Governor certified the Democratic electors on January 4, 1961,

shortly after taking office.” Jack M. Balkin, Bush v. Gore and the Boundary Between

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Law and Politics, 110 YALE L.J. 1407, 1421 n.55 (2001). Prior to resolution of the

election contest, both sets of electors met and voted, but only the Republicans were

certified. In light of the pendency of Trump’s election contest in Georgia, the

situation was entirely analogous, as AAG Clark argued.

While finding that AAG Clark had no factual predicate for suggesting

additional investigations is belied not only by the Ligon Report but Clark’s evidence

that there was a massive violation of Georgia election law with respect to absentee

ballots in Fulton County. Georgia law required that absentee ballot signatures be

verified before an absentee ballot could be counted. O.C.G.A. §21-2-38(b) and (c)

(2020 version). Fulton County did not do any absentee ballots signature

verification at all, but counted 146,029 absentee ballots anyway. Wingate, Tr.1033-

34, RX 561. This flat-out illegal counting of absentee ballots far exceeded the margin

of victory and was sufficient to put the outcome of the election in doubt statewide

and satisfy the elements of a successful election contest under Georgia law. O.C.G.A.

§21-2-520 et. seq. Trump was insistent on the issue but was rebuffed and mocked by

Rosen and Donoghue. ODC Exh. 12. This evidence cannot be wished away.

III. THE COMMITTEE ERRED BY E X C L U D I N G P O S T J A N U A R Y 3,

2021 E V I D E N C E .

The Committee Chair erroneously excluded evidence of what was learned

after January 3, 2021. A small taste of that evidence was received when ODC opened

the door during his cross-examination of Garland Favorito and Mr. Favorito

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explained multiple instances of fraud and irregularity in the outcome of the 2020

presidential election in Georgia. For example, though length constraints preclude

enumerating them here, Mr. Favorito testified on cross and redirect to a

superabundance of compelling evidence that the 2020 election in in Georgia was

afflicted by substantial fraud and irregularity warranting further investigation.

Tr.1426-1454; 1464-69; 1489-1500, RX-337.

We were not allowed to present multiple expert and fact witnesses who would

have given additional powerful and persuasive evidence of these and other

significant irregularities in the November 2020 election in Georgia that vindicate

Mr. Clark’s call for additional investigation.

IV. THE RECOMMENDED PENALTY IS EXCESSIVE

The Committee recommended that Clark be suspended for two years and

demonstrate fitness to practice before being readmitted. This recommendation,

although short of the disbarment ODC sought, was based on several legal and factual

errors.

First, in considering the severity of the misconduct, the Committee found that

Clark’s actions “risked disabling the Justice Department, throwing the Presidential

election into chaos, and even potentially causing riots in the streets.” R&R at 195.

This finding was not based on substantial evidence. The only portion of it that has

so much as a faint echo in the case record is the reference to “riots in the streets,”

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alluded to by Philbin. Philbin did not explain his reasoning nor was he qualified as

an expert. Other than this stray remark, there was no evidence offered on the

probable effect of mailing a letter such as Clark had drafted. The letter might just as

well quelled social unrest by providing the public with assurances that their

government was investigating alleged irregularities.

As to “disabling the Justice Department” through mass resignations, any

threatened resignations would have been the independent decisions of other

government appointees rather than an inevitable consequence of Clark’s proposals.

Clark not urge the resignations. He pleaded with Rosen specifically to stay on.

Responsibility for any further resignations would have been on the shoulders of

those who resigned. Given that the final decision maker (the President) did not side

with Clark, and that Clark responded by humbly serving out his appointment, no

resignations took place.

The Committee next states under “prejudice to the client” that Clark

potentially prejudiced the “Justice Department” and the “Office of the President.”

R&R at 195. As explained elsewhere in this filing, the client was the President of the

United States, and there is no allegation that he was prejudiced. Moreover, there is

no evidence supporting the Committee’s statement that Clark was serving the

President as candidate and not President. Neither Donald Trump— nor anyone

vested with the authority to speak officially on behalf of some section of the

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Executive Branch — has alleged that Clark caused prejudice or that he acted in a

campaign capacity or even was in communication with campaign officials.

The Committee also relies on what it calls the “extreme nature” of the

warnings “that Clark disregarded,” referring to the testimony of Rosen and

Donoghue. R&R at 204. It is illogical to include this as an aggravator considering

the Committee’s previous finding that Clark “was sincere in his beliefs” and

“thought he had been chosen for a historic cause, to which he applied all of his

energies.” Id. If Clark was indeed subjectively sincere as the Committee found, then

standing on principle even in the face of “extreme” opposition is exactly what he

should have done and thus cannot be independently aggravating. Moreover, Clark

did not “disregard” the warnings, which suggests he was not willing to listen. The

evidence was clear that Clark engaged in extensive debate with those opposing his

ideas and simply was not persuaded by anything they said. At times, he did appear

to change his opinion such as when, following a confidential briefing on foreign

interference in the election, he did not pursue that subject further. It was therefore

error for the Committee to include this as an aggravator and, in many ways, put Clark

into a Catch-22 in defending the privileges protected by the ethics rules while he

stands accused of breaching them.

When considering comparable cases, the Committee acknowledges a long

history of cases involving false statements much more flagrant than anything alleged

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to be in Clark’s letter, but with equal or lesser sanctions. R&R at 205-06. Needing

to distinguish these cases in order to justify anything other than a de minimis

sanction, the Committee compounded the factual error described above with

reference to the supposed seriousness of the misconduct. The committee stated that:

This case is not like a lawyer making a misstatement in a brief. Clark

engaged in a campaign that ignored warning signs so significant that he
risked mass resignations in the Justice Department and riots in the street.
The sanction needs to reflect the seriousness of the risks Clark dismissed.

Id. at 209.

This is the Committee’s personal opinion(s) on what would have ensued based

nothing more than speculation. The truth is that the potential consequences of

Clark’s proposal is beyond the competence of any Committee — but certainly

beyond the competence of a Committee like this one that did not even receive any

evidence on so complex a question.

Additionally, the Committee recommends that Clark meet a fitness

requirement before readmission. Id. at 210-212. It recommends this condition even

though, as stated above, the Committee agrees that Clark acted from sincere and self-

sacrificial motives at all times and that the committee has “no question that Clark

has the talent and intelligence to serve as a lawyer.” R&R 212. The Committee does

not explain exactly how Clark would demonstrate “fitness” in these circumstances.

The recommendation treads dangerously close to imposing a politicized condition

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on Clark’s continued career as a lawyer, requiring him to submit to a struggle

session.

The lack of fair notice in this entirely unprecedented case has been an

important theme of this brief. And this has implications not just as an absolute

defense to the Charges on both constitutional grounds and under the DOJ Section

530B regulations, but also to sanction. There is a line of ethics decisions that either

declines to impose a sanction where the law is unclear or that finds the relevant

conduct violative but does so only prospectively when questions of first impression

are involved. In re Kline, 113 A.3d 202 (D.C. 2015) (imposing no sanction for a

Brady violation where the ethical law was ambigous prior to the decision); In re

Alexei, 319 A.3d 404 (D.C. 2024) (applying holding that withdrawing flat fee

payments before conclusion of case is unethical “prospectively” and not to the

respondent since it was new).

In conclusion, taking into account Clark’s unquestioned high motives, his lack

of record, his distinguished career and all comparable cases, this Board should not

accept the committee’s recommendation. At most, the Board should recommend a

de minimis sanction, such as a private admonition that Clark be cautioned in the

future always to be mindful of the need to qualify his statements.

Respectfully submitted this 29 day of October, 2024.

86
/s/ Charles Burnham Robert A. Destro
Charles Burnham Ohio Bar #0024315
DC Bar No. 1003464 4532 Langston Blvd, #520
Burnham and Gorokhov, PLLC Arlington, VA 22207
1424 K Street, NW 202-319-5303
Suite 500 [email protected]
Washington DC 20005
(202) 386-6920
[email protected]

/s/ Harry W. MacDougald

Harry W. MacDougald
Georgia Bar No. 453076
Caldwell, Carlson, Elliott & DeLoach, LLP
6 Concourse Parkway, Suite 2400
Atlanta, Georgia 30328
(404) 843-1956
[email protected]

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 CERTIFICATE OF LENGTH

I certify that this brief contains 20,887 words according the word count

function in Microsoft Word.

/s/ Harry W. MacDougald

Harry W. MacDougald
Georgia Bar No. 453076
Caldwell, Carlson, Elliott & DeLoach, LLP
6 Concourse Parkway, Suite 2400
Atlanta, Georgia 30328
(404) 843-1956
[email protected]

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 CERTIFICATE OF SERVICE

I hereby certify that I have on this day served counsel for the opposing party

with a copy of this Brief of Respondent by email addressed to:

Hamilton P. Fox
Jason R. Horrell
Jack Metzler
D.C. Bar
Building A, Room 117
515 5th Street NW
Washington DC 20001
[email protected]

This this 29 day of October, 2024.

/s/ Harry W. MacDougald

Harry W. MacDougald
Georgia Bar No. 453076
Caldwell, Carlson, Elliott & DeLoach, LLP
6 Concourse Parkway, Suite 2400
Atlanta, Georgia 30328
(404) 843-1956
[email protected]

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