Policy

Jan. 6 Panel to Propose Charging Former Trump Official With Contempt

WASHINGTON — The House committee investigating the Jan. 6 attack on the Capitol moved on Monday to begin contempt of Congress proceedings against Jeffrey Clark, a former Justice Department official involved in President Donald J. Trump’s efforts to overturn the 2020 presidential election, setting a vote this week on recommending criminal charges for his refusal to cooperate with a subpoena from the panel.

The vote would be the second such confrontation between the committee and an ally of Mr. Trump since Congress began investigating the circumstances surrounding the Capitol riot, including the former president’s attempts to subvert the election. The House voted in October to recommend that another of Mr. Trump’s associates, Stephen K. Bannon, be charged with criminal contempt of Congress for stonewalling the inquiry. A federal grand jury subsequently indicted him on two counts that could carry up to two years behind bars in total.

The House committee issued a subpoena in October seeking testimony and records from Mr. Clark. In early November, he appeared before the panel but delivered a letter from his lawyer, Harry W. MacDougald, saying that Mr. Clark would not answer substantive questions.

The letter cited attorney-client privilege protecting Mr. Clark’s conversations with Mr. Trump and argued that the former Justice Department official was “duty bound not to provide testimony to your committee covering information protected by the former president’s assertion of executive privilege.”

Mr. MacDougald also argued in the letter that Mr. Clark had nothing to do with the events of Jan. 6.

“He has informed me he worked from home that day to avoid wrestling with potential street closures to get to and from his office at Main Justice,” the letter said, referring to the department’s headquarters near the National Mall. “Nor did Mr. Clark have any responsibilities to oversee security at the Capitol or have the ability to deploy any Department of Justice personnel or resources there.”

Neither Mr. Clark nor his lawyer responded to a request for comment on Monday.

Under federal law, any person summoned as a congressional witness who refuses to comply can face a misdemeanor charge that carries a fine of $100 to $100,000 and a jail sentence of one month to one year.

In refusing to cooperate, Mr. Bannon cited a directive that Mr. Trump sent to former aides and advisers to invoke immunity and refrain from turning over documents that might be protected under executive privilege. The former president has also sued the committee in an attempt to block the release of at least 770 pages of documents related to the Capitol riot, a case that is under consideration by a federal appeals court.

Mr. Bannon has threatened to turn the case against him into the “misdemeanor from hell” for the Justice Department, and in a court filing on Sunday, federal prosecutors accused him and his lawyers of making “extrajudicial statements” that “make clear the defense’s real purpose: to abuse criminal discovery to try this case in the media rather than in court.”

At the same time, the committee is considering what to do about a third potential witness, Mark Meadows, Mr. Trump’s former chief of staff, who has also refused to comply with a subpoena. The committee said that Mr. Meadows had refused to answer even basic questions, such as whether he was using a private cellphone to communicate on Jan. 6 and the location of his text messages from that day.

Understand the Claim of Executive Privilege in the Jan. 6. Inquiry


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A key issue yet untested. Donald Trump’s power as former president to keep information from his White House secret has become a central issue in the House’s investigation of the Jan. 6 Capitol riot. Amid an attempt by Mr. Trump to keep personal records secret and the indictment of Stephen K. Bannon for contempt of Congress, here’s a breakdown of executive privilege:

What is executive privilege? It is a power claimed by presidents under the Constitution to prevent the other two branches of government from gaining access to certain internal executive branch information, especially confidential communications involving the president or among his top aides.

What is Trump’s claim? Former President Trump has filed a lawsuit seeking to block the disclosure of White House files related to his actions and communications surrounding the Jan. 6 Capitol riot. He argues that these matters must remain a secret as a matter of executive privilege.

Is Trump’s privilege claim valid? The constitutional line between a president’s secrecy powers and Congress’s investigative authority is hazy. Though a judge rejected Mr. Trump’s bid to keep his papers secret, it is likely that the case will ultimately be resolved by the Supreme Court.

Is executive privilege an absolute power? No. Even a legitimate claim of executive privilege may not always prevail in court. During the Watergate scandal in 1974, the Supreme Court upheld an order requiring President Richard M. Nixon to turn over his Oval Office tapes.

May ex-presidents invoke executive privilege? Yes, but courts may view their claims with less deference than those of current presidents. In 1977, the Supreme Court said Nixon could make a claim of executive privilege even though he was out of office, though the court ultimately ruled against him in the case.

Is Steve Bannon covered by executive privilege? This is unclear. Mr. Bannon’s case could raise the novel legal question of whether or how far a claim of executive privilege may extend to communications between a president and an informal adviser outside of the government.

What is contempt of Congress? It is a sanction imposed on people who defy congressional subpoenas. Congress can refer contempt citations to the Justice Department and ask for criminal charges. Mr. Bannon has been indicted on contempt charges for refusing to comply with a subpoena that seeks documents and testimony.

Mr. Clark was a little-known official at the Justice Department who repeatedly pushed his colleagues to help Mr. Trump undo his election defeat. The Senate Judiciary Committee said in a recent report that there was credible evidence that Mr. Clark had been involved in efforts to interrupt the peaceful transfer of power, citing his proposal to deliver a letter to state legislators in Georgia encouraging them to delay certification of election results.

The New York Times reported in January that Mr. Clark also discussed with Mr. Trump a plan to oust Jeffrey A. Rosen, the former acting attorney general, and wield the Justice Department’s power to force state lawmakers in Georgia to overturn its election results. Mr. Clark denied the report, which was based on the accounts of four former Trump administration officials who asked not to be named because of fear of retaliation.

The Senate Judiciary Committee also said that Mr. Clark had recommended holding a news conference announcing that the Justice Department was investigating allegations of voter fraud, in line with Mr. Trump’s repeated demands, despite a lack of evidence of any fraud. That proposal was rejected by senior leaders in the department.

In private testimony before the Judiciary Committee, Mr. Rosen said that Mr. Clark had told him that Mr. Trump was getting ready to fire Mr. Rosen and endorse Mr. Clark’s strategy of pursuing conspiracy theories about the hacking of voting machines and fraud.

“Well, I don’t get to be fired by someone who works for me,” Mr. Rosen said he told Mr. Clark.

Katie Benner contributed reporting.

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