The Jan. 6 committee's latest excursion

Plus a note on Jeff Clark

One might have thought that the task of the January 6 Committee is to investigate the January 6 rioting — what happened, what caused it to happen, and who is responsible for it happening. That inquiry would entail some examination of Donald Trump’s post-election conduct, but would not encompass everything Trump said or did about the election that was objectionable. An inquiry that sweeping might have been appropriate in an impeachment proceeding, but not in an investigation of January 6.

Under this sensible framework, yesterday’s hearing was an excursion into the irrelevant — a fascinating trip for many, including me, but a sideshow nonetheless.

The topic yesterday was Trump’s efforts to the induce the Department of Justice to pursue his claims of election fraud and to publicly declare the presidential election corrupt. Had Trump succeeded in these efforts, it might have had dire consequences. One of them might have been more intense rioting than occurred on January 6.

But Trump did not succeed. The DOJ successfully resisted him at every turn. Thus, insofar as January 6 is concerned, Trump’s behind-the-scene pressure campaign was a non-event. For purposes of examining the riot and allocating responsibility for it, the pressure campaign might just as well have never occurred.

Jeff Clark (about whom more below) was Trump’s point man at the DOJ. He (perhaps with some help) drafted a letter for the Acting Attorney General’s signature declaring that the Department had found significant concerns of voting irregularities that might have affected the outcome of the presidential election in multiple states. The letter further stated that, in light of these concerns, the state legislature (Georgia in the case of this particular draft letter) should convene a special legislative session to take evidence and deliberate on the matter.

Acting Attorney General Jeff Rosen and his Acting Deputy unequivocally refused to sign the letter and it never went out. Thus, it had no impact on the events of January 6.

Rosen’s refusal to sign the letter led to what some characterize as a coup attempt at the DOJ. Had the “coup” succeeded, Trump would have elevated Clark to Acting Attorney General (assuming Rosen still refused to sign); the letter would have been sent; and Clark would have tried to spearhead a last-ditch DOJ investigation of fraud in multiple states.

Trump was ready to replace Rosen with Clark, but Rosen and others, including the White House counsel, talked him out of it. So again, the so-called attempted coup has no bearing on the events of January 6.

The same is true of virtually all of the testimony and other evidence presented yesterday.

The goal of yesterday’s hearing wasn’t to shed light on January 6. It was to make Donald Trump look bad.

He did look bad. For far too long, he wouldn’t take “no” for an answer from the DOJ even though the evidence showed that “no” was the correct answer. He urged the Justice Department to call the election “corrupt,” even though it lacked evidence to support this characterization and top DOJ officials had told him so. They also told him it wasn’t the Department’s role to make this sort of declaration.

Yet, in the end Trump did take the “no.” for an answer. He declined to replace Rosen with Clark, albeit not for any principled reason but apparently because DOJ’s top officials and his own advisers persuaded him that the move would trigger mass resignations and that Clark couldn’t pull off the kind of investigation Trump wanted.

I found the hearing on Trump’s efforts to pressure Mike Pence more damning than the hearing on the DOJ machinations. Trump wanted Pence to violate his duty under the Constitution. Trump wanted the Justice Department to investigate what its top officials thought were specious claims and to make statements about the election they did not believe to be proper or factual. That’s pretty bad, but not as bad as the pressure campaign against Pence, in my view.

More to the point, the campaign against Pence connects with January 6. Statements Trump made to the Jan 6 crowd were clearly intended to intimidate Pence, and the rioters, having heard what Trump said, seemed prepared to do Pence bodily harm. This sort of thing was not the case with Trump’s behind-the-scene efforts regarding the DOJ.

Finally, some words about Jeff Clark. I met him when his nomination to be Assistant Attorney General was being blocked. He asked me to help break the logjam. I did what little I could and was honored when, after the Senate finally confirmed him, Jeff invited me to his swearing-in ceremony.

I found Clark to be a sensible guy, and I was certainly not alone in that assessment. In fact, Jeff Rosen, the man Clark tried to replace, told the Jan. 6 committee in deposition testimony that the Jeff Clark of the final days of the Trump administration was nothing like the Jeff Clark he had known for years, including during their time together at the same law firm.

In the final days, Clark was not sensible. He exercised terrible judgment, in my opinion. As yesterday’s hearings made clear, the DOJ had investigated each credible claim of fraud presented to it, and had determined either that there was nothing to them or that they couldn’t have changed the outcome in any state.

Clark should never have drafted a letter indicating otherwise. Nor should he have used Jeff Rosen’s unwillingness to sign the letter as a basis for seeking to replace Rosen as Acting Attorney General.

But did Clark commit a crime? The question is pertinent because he’s apparently under criminal investigation.

In fact, yesterday a dozen or so law enforcement officials barged into his house at dawn and conducted a multi-hour search while Clark, still in pajamas, waited outside in the street.

Clark’s actions at issue occurred a year-and-a-half ago. Yet, it wasn’t until the day of the hearing about these actions that the FBI conducted its search. Coincidence? It doesn’t seem likely.

I’m no criminal lawyer but it’s difficult for me to see criminality in Clark’s conduct. His actions were inappropriate and, had he succeeded, the consequences might have been dire. But where’s the crime?

Clark drafted a letter that contained incorrect information about the status of DOJ’s findings and, in any case, was not an appropriate letter for the Justice Department to send. The letter wasn’t sent. I don’t see a crime here.

Clark went over the head of his bosses and discussed the election directly with the president, in violation of the DOJ procedures, according to Rosen. Again, I don’t see a crime.

I don’t doubt the ability of creative left-wing DOJ lawyers to concoct a criminal charge against Clark, perhaps some sort of alleged conspiracy with Trump and others on his team. But all I see is a disagreement between Clark and his superiors over a very important matter in which Clark took the wrong side, made some bad judgments, violated internal DOJ procedures, and lost.

Clark can be condemned for this but unless I’m missing something, he shouldn’t be charged with a crime.