Ex-AGs Barr, Sessions and Mukasey oppose DC disbarment of Trump official Jeff Clark over 2020 election stance
In an amicus brief to the D.C. Court of Appeals, three former attorneys general argue that disbarring Clark would set a dangerous precedent and chill the work of federal lawyers.
WASHINGTON — Three former U.S. attorneys general filed an amicus brief with the D.C. Court of Appeals on Thursday opposing the disbarment of Jeffrey Clark, a former Justice Department official who recommended that state legislatures consider investigating voting irregularities in the 2020 election in an internal December 2020 letter. Clark held a senior DOJ role at the time as the department’s acting assistant attorney general, and the DC Bar’s Board of Professional Responsibility subsequently recommended disbarment for pursuing those state-level probes. The filing underscores a dispute over how far professional discipline should extend to legal advice that was never intended for public release.
The amicus brief was submitted by Bill Barr, Jeff Sessions and Michael Mukasey through their counsel at Boyden Gray PLLC, the same group that has pressed to limit consequences for officials who reexamined election concerns. The trio said they weren’t persuaded by the draft letter’s legal strategy, but warned that punishing Clark for proposing a course of action that was never publicly released would set a dangerous precedent. “Disciplining Mr. Clark would open the door to charging federal lawyers with ‘dishonesty’ or ‘attempted dishonesty' for statements made during oral arguments, theories in briefs, legal advice provided in memoranda, or even (as here) proposals in privileged internal draft documents and discussions,” they wrote in the 23-page filing.
The former attorneys general argued that the board’s action goes beyond addressing factual inaccuracies or misrepresentations. They noted that while they may not agree with the draft letter’s strategic approach, punishing Clark would send a chilling signal that could deter federal lawyers from offering frank, even controversial, legal perspectives in important national matters. The brief suggests that the letter Clark circulated was an internal document and that its public release, if any, would have occurred only in the ordinary course of government process—not as a binding legal directive.
Clark’s lawyer, Harry MacDougald, has argued that his client “never lied about anything to anybody.” The DC Bar’s disciplinary board, by contrast, contends that Clark “persistently and energetically sought to do just that on an important national issue,” and that he should be disbarred to send a message that the behavior will not be tolerated. The amicus filing counters that the proposed sanction would exceed any reasonable response to a professional misstep, especially given that there was no criminal conviction or false statement presented to a court in Clark’s case.
In laying out their case, the former attorneys general also invoked the case of Kevin Clinesmith, the former FBI lawyer who pleaded guilty to falsifying documents to obtain a surveillance warrant in 2016. The amicus brief notes that Clinesmith received a one-year suspension from the DC Bar and was restored to full licensing after probation, a contrast they say highlights what they view as a double standard. “The Board retroactively suspended Mr. Clinesmith for just one year, and restored his license even before he completed his term of probation,” they wrote. “The contrast with Mr. Clark’s case is striking.” They contend that the Board’s insistence on disbarment, despite no criminal conviction or proven falsity in court, reflects an inconsistent approach to disciplinary penalties.
The DC Bar’s Board of Professional Responsibility issued its preliminary ruling on July 31, recommending that Clark have his law license suspended for two years. The board stated that Clark “persistently and energetically sought to do just that”—advancing proposals to investigate the 2020 election at the state level—despite the fact that the letter was not intended to be publicly released. The board also asserted that lawyers cannot advocate for outcomes based on false statements, a point stressed by Clark’s counsel as a mischaracterization of his client’s actions.
The amicus brief acknowledges the seriousness of election integrity issues but argues that punishing Clark for privately discussing options would imperil the type of internal legal deliberation that lawmakers and agencies rely on. The three former attorneys general emphasize that the legal advice provided to government leaders can be nuanced and is not always suited to public discussion, and they warn that disbarment could discourage federal lawyers from supplying candid analysis in high-stakes matters.
Clark’s case has drawn attention not only for its potential impact on his license but also for what it could signal about the treatment of internal, non-public legal recommendations in high-profile political disputes. The D.C. Court of Appeals will weigh the amicus brief alongside the disciplinary record and arguments presented by Clark’s legal team as it considers whether to sustains or modify the Board’s recommended discipline. The outcome could influence how similar internal discussions are treated in the federal legal system and may shape the balance between protecting the integrity of the bar and preserving the ability of government lawyers to offer frank, strategic advice in sensitive political contexts.
The parties have not yielded to speculation about the resolution, but the filing demonstrates that the debate over the boundaries of professional discipline remains intensely partisan and closely watched. Supporters of Clark argue that a disbarment would entrench a normative standard that could chill internal deliberations, while supporters of the bar’s action say the conduct at issue warrants a strong sanction to deter similar episodes in the future.
As the case moves through the appellate process, observers will watch to see whether the court agrees with the amicus brief’s central premise: that the chilling effect on federal legal advice would have far-reaching consequences for how the government frames, revises, and ultimately presents legal strategy in response to contested elections and other hot-button political issues.