The Jeff Clark Interview

Edited transcript

HANS MAHNCKE

Jeff Clark, thanks for making the time to see us here at the Counterlawfare Institute. Well, we are actually at your office, but thank you so much. You are one of the better-known victims of lawfare, particularly the subcategory called barfare, and you have been battling this for over six years.

Your career trajectory was probably not one that people would have expected to lead you here. You worked in the Bush 43 administration, then went into private practice at an elite law firm. You had a fantastic career and worked on some amazing cases. By the time the first Trump administration started, you had an established practice, clients, and the prospect of working another five or ten years before retiring and enjoying life. But you chose to enter the Trump administration. Why did you do that?

JEFF CLARK

Well, thanks for having me to talk about all this, Hans. I appreciate what you are doing with your new effort. Your presence on X is important, as is your scholarship exposing Russiagate.

A lot of my best earning years were stolen from me as a result of this lawfare and barfare. But the short answer to why I wanted to enter Trump 45 is that I have a public service bug. After college, I worked for three years doing economic analysis for the state of Delaware. I enjoyed serving in state government, and then I went to law school. Later, I joined the Bush 43 administration in a high-ranking position. I was one of the youngest deputy assistant attorneys general ever, at about age 33, starting in 2001 just a couple of weeks before 9/11. I was there when the Justice Department building had to be evacuated after the attacks.

I was anxious to return to public service. I had a range of possibilities, and I talked to a friend in the White House Counsel's Office who has since become a judge. He asked what I wanted, and I said I would like to head the Environment Division, where I had started my DOJ career under Bush in 2001. They later tried to convince me to take the EPA general counsel position, which is a fine position and an honor to be offered. But I said no. The great thing about being at the Justice Department is that you can actually litigate.

A lot of people in assistant attorney general roles end up presiding over meetings and going to White House and agency meetings. I always kept my hand in litigation. I personally handled cases during Bush 43, and I expected to do the same during Trump 45, which I did. That is why I took the job.

I had members of the media calling me in 2016, pointing out that I appeared to be the only partner at a major law firm who, together with his wife, had maxed out contributions to Donald Trump. The undertone was, "What's wrong with you?" The formal question was, "What do you see that others don't see?" That is the basic story of how I ended up at DOJ in Trump 45.

HANS MAHNCKE

You came to real public prominence in the period after the 2020 election. What was your time at DOJ like before that?

JEFF CLARK

It was great. Things were going well. Democrats, much more than Republicans, tend to give a free pass to nominees from the other party who have a certain level of credentials. Their attitude toward Republicans is quite different. I did receive votes from some more centrist Democratic senators, but others had looked into what I stood for during Bush 43 and what I had done in private practice. They decided to try to block me.

They delayed my confirmation for 14 months from the time of my hearing. I finally took office on November 1, 2018. I had to be nominated a second time because Democrats managed to push the process into another Congress. I was told I might be the target of oversight hearings, but I was never called to one. I had a strong litigation record. I won about 80 percent of the cases I personally handled in the Environment Division during that period.

One prominent case was colloquially called the Climate Kids case. Ostensibly, a number of children, but in my view really leftist NGOs and law professors, sued a collection of White House officials and cabinet officers. They were trying to have a single judge in Oregon take over energy policy for the entire United States. They were poised to succeed. On the day I started, we quickly filed an effort to convince the Supreme Court to lean on the Ninth Circuit. The district judge was trying to avoid appellate review by pointing out that she had not issued a final judgment. She wanted to keep the process going.

I think the Ninth Circuit saw the handwriting on the wall after the Supreme Court ruled and granted an interlocutory appeal. Months later, I briefed and argued the case in a special Ninth Circuit session in Portland, Oregon. I was there before the Black Lives Matter and Antifa riots in 2020 that attacked the very courthouse where I had argued the case.

60 Minutes did a whole exposé on the case. They wanted me on camera, but I offered a statement instead. I have never seen a situation where 60 Minutes was given a statement and did not put at least part of it on screen. They did not use mine, because I had shown that the plaintiffs lacked standing. They wanted to focus on these poor children supposedly suing to protect their future. That is a standard leftist media tactic.

HANS MAHNCKE

It is always the kids. Save the kids. Who is thinking of the kids? If we can save just one life, especially a child's life. All of that ties into lawfare, although I would say that this case probably was not lawfare, at least as we understand the term now.

JEFF CLARK

No, I would not call it lawfare. I would call it an abuse of administrative law mechanisms under the APA, or an abuse of citizen-suit processes. There is a lot of that in the environmental area. But I would not call it lawfare because it did not have the element of trying to destroy a particular individual.

HANS MAHNCKE

Or trying to undo the results of an election, as with Russiagate. Was there any overlap between your work and Russiagate during this period?

JEFF CLARK

No, there was not. I was focused on the work of the Environment Division, which is vast. It has roughly 400 lawyers, plus a large complement of support staff. Energy policy and EPA litigation go through the division. So do many Defense Department issues. I received an award during Bush 43 for work protecting military readiness, because environmental groups had targeted the Pentagon to try to restrict its activities.

The day before 9/11, when I was a freshly minted political appointee, I was at the Naval Annex of the Pentagon getting a briefing about Fort Greely and the Star Wars missile defense program. We knew environmental groups would try to block activities at Fort Greely. Congress has seen fit to authorize certain kinds of lawsuits, but I think it is ridiculous that some environmental group could interfere with a missile defense program that provides a blanket of defense for the entire country. Yet here we are.

All of the Native American law issues flow through the Environment Division, along with public lands issues, the Interior Department, the oceans, and NOAA. It is a vast portfolio, but it did not involve Russiagate.

HANS MAHNCKE

You were lucky to escape that. So many people who had nothing to do with Russia were dragged into it. You then became the acting head of the Civil Division.

JEFF CLARK

I had actually planned to return to private practice before the end of Trump 45. I had talked with my former international law firm and a few other firms in Washington. It is a valuable credential to have been a Senate-confirmed assistant attorney general, especially one who personally litigated successful cases instead of simply serving as a political figurehead or manager. I could show law firms a track record of litigation, rather than just offering to run a lobbying practice. I had lined up a prominent legal recruiter and begun the process.

Then Attorney General Bill Barr and Deputy Attorney General Jeff Rosen, who had been a partner of mine at Kirkland & Ellis, approached me about taking over the Civil Division. I am going to be directly critical here because of things that emerged later. George Conway, for instance, had tried to run the Civil Division. Thankfully, he was rebuffed. He had also been interested in being solicitor general, which I think was unrealistic.

They appointed Jody Hunt as assistant attorney general of the Civil Division. He seemed like a decent guy. But after Cassidy Hutchinson was approached, I believe by Liz Cheney and people such as Alyssa Farah, to start lying to the January 6th committee, she developed the story that Stefan Passantino had tried to coach her to lie. I believe that accusation is bogus. Passantino sued over it and has largely cleared his name. Hutchinson then obtained a second group of lawyers, and one of them was Jody Hunt. To go from being a Senate-confirmed assistant attorney general under Trump to representing Cassidy Hutchinson was an extraordinary 180-degree reversal. I do not know anyone else who would have done that.

Jody was not viewed as running the Civil Division particularly well. Career officials were fine with it because he was not changing anything. He was rubber-stamping things, and he had been a career official in the division for decades. The theory was that this was a good reason to appoint him. It illustrates a difference between Trump 45 and Trump 47. I do not think a career official would be tapped for that role under Trump 47, because lessons were learned.

Eventually he left. There were a couple of acting heads before me, and with three or four months remaining in Trump 45 I was asked to take the position. I retained my title as assistant attorney general of the Environment Division while simultaneously serving as acting assistant attorney general of the Civil Division. The Civil Division had about 1,000 lawyers, so I was responsible for roughly 1,400 lawyers in all, plus support staff.

My reasoning was that there could not be many actual litigators on the market who had run two divisions of the Justice Department. In addition to serving my country for a few extra months, this would add to my credentials and marketability. I took it on, never expecting to touch the 2020 election particularly deeply. But fate has a way of finding you.

HANS MAHNCKE

If you had not taken it on, you probably would not have played a role in what happened after the election.

JEFF CLARK

I think I would have done some of what I did early on. I took over the Civil Division around the beginning of September 2020, so I had been in the position for about two months by the election. I did go to see Jeff Rosen to talk about my concerns regarding the election. I probably would have done that as a personal friend even if I had remained only at the Environment Division. But I would not have had the same official involvement.

As head of the Civil Division, I had direct involvement in two election-related cases. The story from The New York Times, The Washington Post, Democratic politicians, and social media was that I had no business touching the election, that I knew nothing about election law, and that President Trump wanted me there because he thought I would do whatever he told me. That I was a toady. Those accusations are completely incorrect. I would never violate my oath of office, even for President Trump, whom I greatly respect and to whom I was loyal. But he was the president and therefore the boss. Officials should be loyal to the president who appoints them, consistent with the law.

The Civil Division does handle election-related issues. It does less in this field than the Civil Rights Division, or potentially the Criminal Division if fraud is involved, but it does have a role. The first area I worked on involved lawsuits over the Postal Service and the processing of mail-in ballots for the 2020 election. Mail-in ballots had become a staple for Democrats and a cause célèbre championed with tremendous vehemence by people such as Marc Elias. There were suits in multiple jurisdictions, including Pennsylvania and federal court in DC, attempting to place restrictions on and judicial oversight over the mail-ballot process. I defended that litigation.

The other case had an even more direct connection to what later became the subject of public debate. Former congressman and Texas state judge Louie Gohmert, along with the alternate electors in Arizona, brought a federal lawsuit in the Eastern District of Texas against Vice President Pence. They sought an injunction instructing the vice president how to proceed on January 6 when counting the electoral votes. I was tasked with defending that suit. I worked with Pence's counsel and lawyers in the Civil Division. I also knew Doug Letter, who had long headed the Civil Division's appellate section and was then general counsel of the House. He was interested in how I would defend the case.

I got it dismissed in record time. President Trump is not a lawyer, and I imagine he may not have been pleased that I got the case dismissed. He tends to focus on results. But dismissal was the right thing to do. A Justice Department official has duties to the president who appointed him, as well as institutional duties.

Lawsuits attempting to control a president's discretion are common, and the Justice Department's response is to defend that discretion vigorously. The vice president also has certain discretion, although the issue rarely arises. It arose on January 6 because he was presiding over the joint session of Congress. Since outside parties were trying to control his exercise of discretion, it was our duty to get the suit dismissed.

HANS MAHNCKE

It is so important that you say that, because this is a story that is never told.

JEFF CLARK

No, because nobody has an interest in telling it. They create narratives, Hans, as you know. I regard Louie Gohmert as a friend now, although I did not meet him until several years after the litigation. I think he is a true patriot, but I do not think that lawsuit was well advised. If I had been in private practice and somebody had consulted me about it, I would have said it was a loser and should not be brought.

I understand that Gohmert and the other plaintiffs wanted to encourage the vice president not to listen to voices on the left claiming that he had absolutely no discretion and had to rubber-stamp whatever the Electoral College did, regardless of his own views. Judge Luttig later testified along those lines to the January 6th committee. Yet there is a law review article called "Jefferson Counts Himself Into the Presidency," about Thomas Jefferson presiding over the count as vice president. Long before November 2020 and January 6, 2021, law professors understood the vice president's discretion to be an area of serious debate, one not fully resolved by the Constitution. The election of 1876 also raised these issues.

Once people knew whose interests could be affected, however, some of them suddenly claimed that there was no question whatsoever about Pence having no discretion. That is how narrative formation works. Anything contradicting the narrative the left finds convenient gets ignored.

HANS MAHNCKE

The episode that brought you into this lawfare ordeal began with a letter you drafted but never sent. I recently reread it to refresh my memory, and it is actually a sensible letter. We all saw problems with the 2020 election. We can argue about the extent of those problems, their details, and their legal implications, but the enormous expansion of mail-in voting raised obvious chain-of-custody questions. Ballots were distributed, deposited in boxes, and picked up without the safeguards one would expect.

Your letter addressed several issues, specifically Georgia and Fulton County. Years later, information emerged about approximately 315,000 votes whose tally documentation had not been properly signed off on. You had raised concerns about that election process long before. When did that information come out? About a year ago?

JEFF CLARK

And there was zero signature verification, which was a violation of Georgia law. That is functionally also a violation of federal law, because state election laws feed into the Electoral College process. If state legislatures set the rules for choosing presidential electors and those rules are ignored, that creates both state and federal legal problems.

HANS MAHNCKE

So you wrote a letter that was never sent. It was a draft, essentially a discussion document. It was marked as privileged at the top. It was not a final product or an official communication sent out in any capacity. And when I reread it, I saw nothing objectionable in it. The phrase the media focused on was "significant concerns." Those are quite guarded words, given what we now know and what you were describing at the time. I could easily think of stronger language. Yet those two words became the basis for outrage.

When you drafted it, did you have any sense that this one document would cause you years of problems?

JEFF CLARK

No. I was surprised by the reaction. I need to put a bracket around this discussion, Hans. Some aspects of the events have become public, through no fault of my own, because of illegal leaks and the political furor that followed. There is a record in a Senate Judiciary Committee report, another in the January 6th committee proceedings, and another in my ongoing bar case. I do not agree with all of the findings in those records, but I cannot deny basic facts such as the existence of the letter.

I have stood on the applicable privileges throughout this process. The trouble began in 2021 and is now in its sixth calendar year, although the sixth anniversary of the official government contacts will be around March 2027. President Trump instructed me to invoke these privileges, and I later received the same instruction from his private counsel at the time, Todd Blanche. Those privileges include executive privilege, law enforcement privilege, attorney-client privilege, and deliberative process privilege. I have not waived any of them. They remain live.

That means I cannot reveal the full story. I cannot tell you about all of the places where people made statements about me that I dispute, whether to protect themselves, deflect attention, or put a millstone around my neck. But I can discuss established facts, including the existence of the letter.

When I wrote it, I was trying to persuade people. I proposed that it be signed by me, acting Attorney General Jeff Rosen, and Richard Donoghue, who had served as US attorney in the Eastern District of New York before coming to Washington as principal associate deputy attorney general, or PADAG. That is a high-ranking position. Functionally, he was sitting in the deputy attorney general's chair, because Rosen had moved up to become acting attorney general.

I proposed having the functional number-one and number-two officials at the Department sign the letter because I believed I could persuade them that sending it was prudent and necessary. I did not persuade them, and that was the beginning of my trouble.

I cannot give you the full details, but the issue eventually went before President Trump on January 3, 2021, during a multi-hour Oval Office meeting. The people there included Rosen, Donoghue, me, Steve Engel, who headed the Office of Legal Counsel, White House Counsel Pat Cipollone, and Deputy White House Counsel Pat Philbin. Most of the lawyers in the room had connections to Kirkland & Ellis. I knew them and thought of most of them as friends. But they reacted very differently to the 2020 election.

They opposed sending the letter and recommended against it. President Trump ultimately decided not to send it. The meeting, however, was not going well for them. It had already gone on for hours, and President Trump was displeased with their arguments. Eventually, they used the ultimate threat. They said they would resign if the letter was sent and if I remained acting attorney general.

Something that is less widely known is that President Trump had selected me as acting attorney general earlier that day, around noon on January 3. The January 6th committee disclosed this and displayed White House phone records during one of its hearings. But as the committee refined its narrative, it did not emphasize that fact, perhaps because it gave me additional credibility.

At the time of the Oval Office meeting, I had been named acting attorney general, and the others were arguing with me and the president. They had organized a group of officials who would supposedly resign. I later learned that they had held a Sunday afternoon call seeking agreement on resignations. They did not obtain unanimity, but they told the president that they had. President Trump said it would cause too much breakage. They were trying to create something comparable to the Saturday Night Massacre, and their threat caused him to pull back.

HANS MAHNCKE

How did the letter leak out?

JEFF CLARK

It did not leak until a few days after Biden's inauguration. Around January 22, I was having lunch at Five Guys with a family friend from church. Our children had attended the same high school, and our wives were friendly. I was finally in a bit of a vacation mode after what had happened. When I am meeting somebody socially and do not expect anything urgent, I try to give that person my attention.

HANS MAHNCKE

At that point, were you worried about what might happen, or was it something you were not thinking about?

JEFF CLARK

Some people had told me I should be worried, so I would not say I had zero concerns. But I can handle a lot of stress. I no longer had a government title. I had resigned on January 14, just eight days earlier. I was relaxing over lunch with a friend. When you are a law firm partner or running a Justice Department division, there can be an emergency at any moment. I was no longer in that position, so I left my phone in the car.

After lunch, I returned to the car and discovered an explosion of activity on the phone, about 20 calls, multiple voice messages, emails, and other communications. Most were from New York Times reporter Katie Benner. She urgently wanted to speak with me. She said she had a story that I had been involved in plotting with Trump to pervert the Constitution.

I took a deep breath and thought about how this might unfold. I realized that I could not have a substantive conversation with her immediately. I needed to think about the privileges and where the line should be drawn. I called her back and learned that she needed an answer by around 9 p.m. that day. In a sense, that was generous. I have had reporters give me only an hour to respond. Perhaps they recognized the potential legal exposure in this story and exercised more caution.

I consulted people who knew about the situation and whom I respected. Interestingly, I received diametrically opposed advice. One person told me it was The New York Times, so I should not speak to them at all. Whatever they were preparing, this adviser assured me, would blow over within weeks or months. The other adviser told me to open the kimono, tell my entire story, and defend myself before the narrative hardened. I pointed out that I was bound by privileges. That adviser, who was also a lawyer but more of a political figure than a practitioner, dismissed the concern as lawyers being overly focused on privileges.

I chose a different course. I thought I had to put a contemporaneous denial of their narrative on the record, but I also needed to explain that the details were privileged and could not be shared. That is what I did.

Katie Benner subsequently published two stories, and I believe I appeared on the front page twice. The first story included an entirely fictional element. I think she is a disappointed novelist. She had also worked for a communist Chinese outlet before The New York Times hired her. She wrote that on New Year's Eve, between 2020 and 2021, I had attended an emergency meeting at the Justice Department called by Jeff Rosen and Richard Donoghue. According to her story, they had called me on the carpet for speaking with President Trump, and I had promised not to speak with him again.

Anyone who knows me, or understands how the Constitution works, would recognize how implausible that was. An independently Senate-confirmed official does not refuse to talk to the president when the president calls. You would not tell him to talk to your boss, who also reports to him. The president can reach as far down into the executive branch as he chooses to obtain advice.

In any event, I was not at that meeting. I was not even at the Justice Department. My wife and I generally spend New Year's Eve at home, occasionally going to dinner, but usually watching some television and the ball drop. That particular New Year's Eve I was stressed and tired by election-related events that the public did not know about. I went to bed around ten o'clock without even staying up for the ball drop.

Imagine opening The New York Times and seeing a front-page account of yourself attending a meeting on New Year's Eve that never happened. I called Benner and told her it was a complete lie, invented to add drama to the narrative. She said she needed to check her notes, then admitted that there had been an error in them. My wife overheard the conversation, which took place around 4:35 in the morning, and she was furious. She told Benner that she knew she had lied, along with some other choice words. That is how I discovered the letter had leaked.

HANS MAHNCKE

Do you know who leaked it?

JEFF CLARK

I do not. To my knowledge, there has been no investigation into the leak. Whoever disclosed that letter violated all the privileges I described, and in my view violated an oath of office. When you are providing confidential advice to the president, it stays confidential. Somebody within the Justice Department breached that obligation, or perhaps somebody high-ranking arranged for a subordinate to do it.

HANS MAHNCKE

Several themes of lawfare have already come up in what you have said. One is the role of the media, which is always important, including when it makes things up as it did in your case. The other is the lack of accountability for leaks. We still do not know who leaked information about General Flynn, information that was itself false and caused him trouble early in Trump's first term. In your case, likewise, we still do not know who was responsible.

JEFF CLARK

The leak of the letter's existence, along with some of the things said inside the Justice Department and the Oval Office, gave the media certain factual points that could be woven into a story. But the spin was the real invention. The alleged New Year's Eve episode was completely fabricated. The larger narrative was created by presenting selected facts in a particular way.

HANS MAHNCKE

The spin was that you and President Trump were plotting a coup to take over the United States and prevent the lawfully elected president, Joe Biden, from taking office. That is what made the story powerful. Without it, this was simply a lawyer who had drafted a letter or legal advice as part of an internal discussion. And the document was entirely internal.

Think about that. I am a lawyer. I type a draft on my computer. I may use it, change it, or discard it. For an internal draft to become the grounds for what has been done to you is incredible. It is horrific. You do not even have to be a lawyer to understand that. In your case, I think the letter was perfectly defensible, and subsequent developments have vindicated the concerns you raised.

But they first came after your law license based on this, correct? Was that the first round of lawfare, or barfare?

JEFF CLARK

No, I would say the first round was being contacted by the House Oversight Committee. Carolyn Maloney was the chair at the time. I was in discussions through a lawyer about potential testimony. Then something peculiar happened, and I do not think I have talked about this before, so you may have a scoop.

I was in New York City to meet someone about a possible new job. Because of the furor created by The New York Times, my ability to return to a large law firm had been severely damaged. I was talking to a conservative public-interest organization and planned to meet one of its leaders over lunch. It was around Memorial Day, and my wife and youngest daughter had come with me. We had done some sightseeing in New York.

Just before that job interview, I received a LinkedIn direct message from someone who said he worked for Senator Dick Durbin. The message said Durbin wanted me to come in for a voluntary interview. I gave a holding response, consulted a lawyer, and ultimately declined. At that point, the Senate Judiciary Committee was evenly divided. Durbin, as a Democrat, chaired it, but the committee would have needed to issue a subpoena to compel my appearance. Evidently, he did not have the votes. That helps explain why I was being approached through LinkedIn. Some lawyers I spoke with thought it was ridiculous that somebody was trying to arrange Senate testimony that way. But I kid you not, that is what happened.

In October 2021, the Senate Judiciary Committee released a report attacking me without having taken any testimony from me. The report was called "Subverting Justice," though it might as well have been called "Jeff Clark Subverts Justice," at least from Dick Durbin's point of view.

Around the same period, the January 6th committee contacted me. First, the House Oversight Committee sent an email saying it would no longer speak with me and that the January 6th committee would be in contact. I ultimately appeared for a deposition before that committee and invoked my privileges. That is another remarkable story.

Adam Schiff was there in person. The other committee members were on WebEx, except Bennie Thompson, the chairman, who was absent. My lawyers and I presented a 25-page letter setting out the privileges I was invoking. The committee called a break because it did not know how to respond. I think members had expected me to testify substantively about privileged communications. In fact, they changed the room twice to accommodate the number of staffers and others who wanted to observe. They had a court reporter, multiple lawyers, the committee parliamentarian, and Schiff himself. They were prepared for a big event.

After we invoked the privileges, they tried for a while to get around them and then sent us out of the room. When we came back, we could hear committee members arguing among themselves. Some appeared to think that since I had invoked the privileges, the deposition should end. Others, including Schiff, wanted to press on and make me talk. We were told to return to the room. Schiff looked at me and demanded to know why I was back. We explained that staff had told us to return, and he ordered us out again. It was a Keystone Cops operation.

Eventually, they brought us back once more. The lead investigative counsel, Heaphy, who had been a US attorney under Obama, was there, but Schiff did the questioning. He tried to get me to discuss the substance. I refused. We went around in circles until my lawyers and I said the deposition was over. The committee disagreed and said I was not authorized to leave. We said there was no point in continuing and left anyway.

They were in a difficult position because Thompson was not present to rule on my privilege objections. I went home, and my lawyer headed to DCA to catch a flight to Atlanta. Around 4:30 p.m., we received a communication from Thompson. Apparently, in about an hour he had reviewed our complex 25-page legal submission, overruled all the privilege objections, and ordered me to return at 4 p.m. that same day. We had some fun responding that it was already 4:30, that we did not have a time machine, and that we were not coming back.

I will shorten the rest of the story. There were many twists and turns. Eventually I invoked the Fifth Amendment. Even after that, the committee released a report recommending that I be held in contempt. It held a nationally televised vote, starting around 9 p.m., to refer a contempt recommendation to the full House, potentially for referral to the Justice Department.

After the vote, Thompson acknowledged that I had recently taken the Fifth and announced that the committee would give me another chance to come in for a second deposition. They already knew I had invoked the Fifth before they held the vote and issued the report. It was as if they had invested so much effort in writing the report that they were unwilling to withdraw it.

I appeared again in February. I invoked the Fifth Amendment along with the other applicable privileges in response to the questions. Schiff, this time appearing by WebEx, argued that I could invoke only the Fifth. I disagreed. If somebody asks what I said to President Trump during a meeting, or what he said to me, that implicates executive privilege, law enforcement privilege, attorney-client privilege, deliberative process privilege, and the Fifth Amendment. Schiff insisted that I could not invoke all of them. I told him that I disagreed, that I was invoking them, and that the record would reflect it. Then he stopped arguing.

HANS MAHNCKE

Who paid for all these lawyers on your side?

JEFF CLARK

Initially, I was paying. I have received help over the years, and eventually I started a GiveSendGo fundraiser.

HANS MAHNCKE

Let us take just the January 6th committee. All of that arose from your work in a government role, carrying out government functions. Should the government not have paid your legal fees?

JEFF CLARK

The Justice Department under Trump 47 has now agreed to pay a portion of my fees. But under Merrick Garland it would have been a complete nonstarter. Garland would not have approved payment for my defense.

There was also a strategic reason I did not apply at the time. I knew the process because I had run the Civil Division. The attorney general delegates to that division the responsibility for deciding whether the Department will pay an official's legal fees when litigation or other proceedings arise from official duties. I had handled such a request myself.

It is a small world. Jody Hunt had been caught up in something connected to Russiagate, as I recall, and asked the Justice Department to pay his fees. I was running the Civil Division in 2020, and I approved his request. Under the regulations, the head of the Civil Division consults with the head of the Criminal Division. If the Criminal Division indicates that it might prosecute the official, the Department does not pay the fees.

So imagine if I had gone to the Garland Justice Department and asked it to pay mine. The Civil Division would consult the Criminal Division. Meanwhile, the media was portraying President Trump and me as criminals in cahoots, involved in a coup conspiracy. Ari Melber on MSNBC used that phrase constantly. Why would I want to force the head of the Criminal Division to decide whether to indict me? I did not submit the fee request until Trump 47.

HANS MAHNCKE

And of course you were also dragged into a criminal case in Georgia.

JEFF CLARK

Yes. And I was also identified as unindicted co-conspirator number four in Jack Smith's DC indictment. After the Supreme Court decided Trump v. United States, the presidential immunity case, on July 1, 2024, Smith obtained a superseding indictment later that year, in which he removed the references to me.

HANS MAHNCKE

That should have ended everything.

JEFF CLARK

Jack Smith recognized the gig was up. But the DC Bar continues coming after me.

HANS MAHNCKE

That brings us to another domain of lawfare against you. First, a word about Georgia, because I do not think its origins are well understood or much discussed in the media. Fani Willis did not simply wake up one morning and decide to go after President Trump. Lawfare activist groups had already prepared documents and strategies. They published blueprints for how to go after Trump, Clark, and others, openly on their websites. The public needs that context. The media makes it look as though an independent prosecutor in Georgia simply decided there was a case, without explaining the connections to those activists.

The Georgia case was eventually dismissed. The Jack Smith case was dropped, as you have explained. The bar proceeding is the one still hanging over you.

I think "barfare" is a useful term because it captures what these proceedings are designed to do. The aim is to deprive lawyers of their ability to earn a livelihood by taking away their licenses and their right to represent clients. You, Rudy Giuliani, John Eastman, and several other prominent people have been subjected to this. I know your case is ongoing, and I hope it ends well. It is horrific that you have had to endure it for so many years.

To close, I want to ask what we do going forward. There are many people working in Trump 47 today, and a number of them will likely be targeted once the administration is over. What can we do to prevent others from suffering what you have suffered?

JEFF CLARK

We need a major effort, and here at the Oversight Project we are poised to launch one. We are pleased that you have established the Counterlawfare Institute. Your intellectual depth is an important tool in this fight, because we need to understand the problem before we can combat it effectively.

I see this as essentially a Marxist effort to create a one-party monopoly in the United States. That is contrary to our system. The Constitution does not specifically mention political parties, but parties emerged immediately. The framers could hardly have been unaware that they were likely to arise. George Washington may have disliked the development, but political competition was inevitable. Competition among ideas is part of our political system, and lawfare and barfare seek to destroy that competition and impose a single way of thinking.

At the Oversight Project, we are launching a new public-interest law firm designed to go both on offense and on defense against lawfare and barfare. This effort is necessary. If Republicans lose control of the House or Senate, we expect a new wave of congressional oversight proceedings. My own experience shows how lawfare can begin in congressional oversight, or what I would call mud-spattering proceedings.

We also want reforms at the state level, through courts and legislatures, to regain control over bar disciplinary apparatuses that have largely been taken over by the left. And we want to help people who do not have substantial financial resources.

I managed to defend myself with a team of lawyers who have been kind enough to charge discounted rates. That has helped me, the people who supported me, and now the Justice Department as well. I did not go to a firm like Kirkland & Ellis and ask for pro bono representation. But I have no doubt that if the shoe were on the other foot, major law firms would be volunteering to represent Democrats targeted by comparable Republican lawfare. There would be a huge pro bono effort. We do not have an equivalent effort on our side, and we need to fill that gap.

The Oversight Project intends to step into that role actively in the coming months, Hans.

HANS MAHNCKE

Great. Thank you so much.

JEFF CLARK

Thank you, Hans.