Experts rip ex-DOJ official's legal defenses to shreds: Lawyering like this 'got him indicted'

Jeffrey Clark, the former senior Justice Department official indicted alongside Donald Trump, is making terrible arguments in his attempt to remove his case to federal court, according to an expert analysis.

Clark has already lost his first battle in federal court when a judge rejected his attempt to forestall his surrender to authorities in Fulton County, Georgia, and he was booked into jail overnight Friday, and a trio of legal experts published a new column for MSNBC slamming his attempts to move the prosecution out of state court and into federal court.

"Both charges [he faces] stem from a letter Clark drafted and circulated within the Justice Department, which was intended to be sent to Georgia officials asking them to consider appointing a false set of electors in light of fabricated 'significant concerns' about the election," wrote legal experts Norm Eisen, Joshua Kolb and Fred Wertheimer.

"The problem for Clark is that, to remove the case, federal law requires him to prove that writing the letter was part of his official duties enforcing federal law," the authors added. "But all the evidence points to Clark’s actions’ being far outside the scope of his official responsibilities — and instead being part of a political ploy orchestrated by Donald Trump to hang on to power and overturn the results of the 2020 presidential election."

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Justice Department policy and the federal Hatch Act each forbid Clark from engaging in partisan political activity while on duty, and the issues he raised in his letter were far outside his normal duties as head of the Environmental and Natural Resources Division, and even the department's civil rights lawyers have no legal authority to ask state legislatures to overturn election results based on nonexistent irregularities.

"No wonder Clark was also reprimanded by acting Attorney General Jeffrey Rosen, White House counsel Pat Cipollone and deputy White House counsel Patrick Philbin for violating Justice Department policy by contacting the president without prior approval to advance his bizarre notions," the legal analysts wrote. "White House lawyer Eric Herschmann told Clark that sending the letter he had drafted would be committing a felony.' In other words, Clark’s bosses and colleagues were telling him that he was acting outside the bounds of his job duties."

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Even if Clark improbably managed to persuade a judge that his conduct was official, he must then successfully argue that he's protected under the Constitution's Supremacy Clause, which protects federal officials from state prosecution when their conduct is authorized by federal law.

"Clark’s overall argument on removal is of a similar caliber to the kind of legal reasoning that got him indicted in the first place," the analysts wrote. "He will need to come up with far more persuasive positions for the jury if he hopes to avoid conviction in the trial that most likely lies ahead of him in Fulton County — and not in federal court."