Passing the criminal contempt report on Clark out of committee will set up a key floor vote in the House, which could come as soon as this week. Following passage in the chamber, it would get referred to the Justice Department, which would then have to decide whether to prosecute.
The criminal contempt report, which is expected to be approved and moved to the floor without any opposition from the committee, marks another critical milestone in the investigation as the panel hopes that even the remote threat of jail time inspires more Trump-aligned witnesses to cooperate. A decision by Clark’s former department to prosecute him on criminal contempt charges would make him the second person to face a serious legal penalty for blowing off the select committee’s requests.
Former President Donald Trump ally Steve Bannon is awaiting trial for a misdemeanor criminal contempt charge after he refused to show up for a deposition or provide documents to the committee, citing executive privilege claims made by Trump.
The contempt report on Clark, which was released Tuesday night, outlines the efforts the committee made to get him to comply with the subpoena, and Clark’s failure to do so.
Hours before the meeting was scheduled to take place, Democratic Rep. Bennie Thompson of Mississippi, who chairs the committee, told CNN that Clark, via his attorney, had sent a new letter to the committee that suggested he may invoke his Fifth Amendment right to not answer the committee’s questions.
The letter indicates a new strategy by Clark, who has gone to great lengths to avoid cooperating with the committee, including claiming that any information he’d be able to provide is protecting by either executive or attorney-client privilege.
Thompson said that the committee had responded to Clark’s letter but that the back-and-forth will not be included in an updated report prior to Wednesday night’s vote.
“Well, this is more of what his attorney in the last day or so has been saying and asserting the Fifth Amendment,” Thompson said when asked about the new communication from Clark and his attorney.
Clark has not formally invoked the Fifth Amendment with his dealings with the committee, but Thompson said his actions indicate that is the direction he is headed. The chairman made it clear, however, it is not something that will prevent the committee from moving ahead with its plans to refer him for criminal contempt.
“He walked out on a deposition,” Thompson said. “That kind of puts you in a weak position to make any type of assertion.”
Democratic Rep. Zoe Lofgren of California, one of the members on the panel described the new letter from Clark’s legal team as “frivolous” earlier in the day.
“They’ve just sent a very long letter that I’ve read through that just seems like frivolous honestly, but I want the lawyers on the committee staff to give us their advice,” Lofgren said.
In its 22-page report, the committee said Clark had violated Justice Department policy when he met with Trump to discuss efforts to overturn the 2020 election and, further, held conversations with members of Congress about delegitimizing the election.
The report states that the committee communicated with Clark’s attorneys multiple times, even allowing an extension for them to produce records and appear for a deposition. But when Clark did finally appear, the committee said, his attorney handed the panel’s staff a 12-page letter objecting to almost every question on the grounds that Trump was entitled to confidential legal advice — what Clark’s attorney called a “sacred trust.”
The letter further argued that “the general category of executive privilege, the specific categories of the presidential communications, law enforcement, and deliberative process privileges, as well as attorney-client privilege and the work product doctrine, all harmonize on this point,” according to the report.
After being pressed to answer questions that the committee believed wouldn’t justify executive privilege claims, Clark “abruptly left” the deposition.
The documents Clark was asked to hand over included communications with Trump, senior members of the White House, Trump’s reelection campaign, John Eastman — a conservative lawyer working with the then-President’s legal team — and state officials.
Ahead of the vote, Thompson said he felt confident the measure will pass the committee with ease, but did not guarantee a unanimous vote.
“I think we’ve made the effort to be as agreeable as we can, and now it’s time for us as a committee to make a decision and move on,” Thompson said. “We can’t continue to waste time on a person who was subpoenaed who doesn’t follow through on what’s required.”
