In a scene that participants have described as resembling the reality show “The Apprentice,” then-President Trump spent hours at the White House on January 3 considering competing pitches from two top Justice Department officials about which of them should get the top spot as acting attorney general.
Jeffrey Clark, then the attorney general for the civil division — who reportedly had secretly expressed his support for the bogus “stolen election” theory directly to Trump himself — made this straightforward proposition, in essence: Choose me and I’ll deploy the Department to help you steal this election. Jeffrey Rosen, then the incumbent acting attorney general, made this counter-proposal to Trump: Replace me with Clark and I’ll quit, along with several other DOJ leaders, and you’ll have a mass resignation on your hands.
Ultimately, after hours of deliberation, Trump stuck with Rosen. But if Trump had chosen Clark, it’s not difficult to see what likely would have followed.
That is because we now know that Clark had earlier drafted an absolutely bonkers letter he intended to be sent from the Justice Department to state officials in Georgia. The Justice Department, according to Clark’s letter, had “identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.”
To be clear: Clark based these drastic claims on, essentially, nothing — though he reportedly did explain to Rosen that he had been “reading on the internet,” according to the New York Times.
Clark’s draft letter continued, “the Governor of Georgia should immediately call a special session to consider this important and urgent matter.” The letter concludes that “we share with you our view that the Georgia General Assembly has implied authority under the Constitution of the United States to call itself into special session for [t]he limited purpose of considering issues pertaining to the appointment of Presidential Electors.”
Clark sought a sign-off on the draft by both Rosen and acting deputy attorney general Richard Donoghue. But they unequivocally rejected Clark’s letter.
But had it been sent, it would have put the Justice Department’s stamp of approval on any efforts by Georgia officials to discard their state’s actual vote, and instead award their electors to Trump. We don’t know whether Georgia officials would have complied — some Georgia Republicans, like Secretary of State Brad Raffensperger, resisted Trump’s worst impulses when he tried to interfere with the election — but a letter from the Justice Department certainly would have opened the door to any Republican lawmaker willing to throw the election over to Trump.
And it could have gotten even worse. There’s a chilling two-word hint in Clark’s letter: “multiple states.” If Georgia had gone along with this scheme to subvert its citizens’ votes and award its electors to Trump, then other Republican-controlled states would have had a blueprint, and an imprimatur, to do the same. It only would have taken two more states — say, Arizona and Wisconsin — to swing the entire 2020 election to Trump.
The new attorney general, Merrick Garland, now has some serious work to do. First, he must firmly re-establish the Justice Department’s independence — from the White House and from politics in general. On that front, Garland recently issued an important policy memorandum that strictly limits communications between DOJ and White House staffers.
Garland also must ensure that the DOJ cooperates fully with ongoing congressional investigations. (We’ve learned much of what we now know about the coup attempt because of ongoing congressional inquiries, which have now been consolidated under the House Select Committee on January 6). To that end, Garland also has been decisive.
He has determined that the DOJ will not invoke executive privilege relating to congressional testimony by its officials. That decision will clear the way for Clark, Rosen and others to testify as Congress pursues the full truth.
Finally, Garland has an obligation to meaningfully investigate and consider potential criminal charges relating to the coup attempt. Reasonable minds can differ on whether charges would ultimately stick, but there’s more than enough “predication,” as prosecutors call it — factual foundation — that demands that Garland’s Justice Department at least take a serious look.
For example, the coup attempt could meet the legal definition of federal crimes, including depriving a state of a fair and impartial election, election interference by federal administrative officials, coercion of political activity and conspiracy to defraud the United States.
Don’t let anyone minimize what Trump, Clark and others nearly pulled off. We now know for sure that they were perilously close to turning the Justice Department into a weapon to assist in an attempted coup.