Recent domestic headlines have been awash with the news of former President Donald Trump’s desperate attempts to weaponize the Justice Department to overturn the election. Beneath those headlines is the strong possibility of political corruption crimes committed by former Trump Assistant Attorney General Jeffrey Boessert Clark and White House Chief of Staff Mark Meadows, not to mention Trump himself.
The background is this: Following former Attorney General William Barr’s abrupt resignation on December 23, it fell on Acting Attorney General Jeffrey Rosen to resist Trump’s entreaty to “just say the election was corrupt [and] leave the rest to me” Rosen refused, fulfilling his oath, at least in that instance, to “support and defend the Constitution” (we bracket here his less ideal conduct as William Barr’s Deputy Attorney General, in the forced resignation of Atlanta-based U.S. Attorney Byung J. Pak and other matters). When Rosen rejected Trump’s move, the President openly threatened “to replace DOJ leadership.” He named who he had in mind to take Rosen’s job, then-Assistant Attorney General Clark.
An especially shocking allegation is that Clark was secretly backdooring Rosen by collaborating and communicating directly with Trump. In late December, Clark drafted a letter asking Georgia legislators to void the state’s vote for President Biden and reportedly pressed Rosen to sign it. Trump and Meadows repeatedly pressured Rosen to enlist the Justice Department in overturning the election, and Clark appears to have directly participated in the plan.
The law: These actions may have run afoul of 18 USC §610, the Political Coercion Act. Its felony provisions make it a crime to intimidate, threaten, command, coerce, or attempt to intimidate, threaten, command or coerce a government employee to engage in “any political activity,” including working “on behalf of a candidate.”
Clark’s apparent participation in the scheme included a meeting on Sunday evening, January 3, in the White House. There Trump considered firing Rosen in a setting officials compared to an episode of “The Apprentice,” with Rosen and Clark vying for the job of attorney general. The matter of discussion included the two men’s jobs and whether DOJ would send the letter to Georgia. Earlier the same day, Clark had told Rosen of Trump’s plan to replace him with Clark, following the assistant attorney general’s private meeting with Trump. The former President dropped the plan only when the DOJ leadership team, including the Office of Legal Counsel, threatened to resign en masse.
The Trump-Clark collaboration, and the efforts to get Rosen to sign the letter to Georgia officials, make Clark vulnerable to charges under §610, either as an aider and abettor of Trump’s efforts or as a co-conspirator with him.
Separately, the better-known Hatch Act makes it a misdemeanor for a federal employee to use “his official authority for the purpose of interfering with, or affecting . . . the election of any candidate for the office of President.” President Franklin Roosevelt signed the Hatch Act into law in 1939 amid concerns that employees of a New Deal relief agency had been pressured to work on political campaigns.
Prohibiting the use of official authority to affect an election fulfills basic precepts at the core of good government: first, that public office should not be used for private gain; second, that super-charging partisan political interest with public resources destroys even-field electoral competition, which serves the people.
Criminal Hatch Act violations are punishable by up to a year in jail. Lest you think that a small deal, for anyone who has never heard a barred door clink behind her, the sound is haunting, signifying the stark loss of liberty 24 hours a day.
And the swiftest route to a lawyer like Clark’s disbarment is via a criminal conviction. That’s how Nixon’s felonious Attorney General, John Mitchell, and more than a dozen other Watergate-connected lawyers lost their bar licenses. In 2001, President Bill Clinton avoided disbarment by surrendering his license on his last day to respond in lawyer discipline proceedings over his contempt conviction for lying in court.
Most importantly, pursuing alleged violations by DOJ employees of §610 or the Hatch Act is essential to preserving the integrity of the Department itself. Attorney General Garland has repeatedly emphasized the centrality of Justice’s independence from White House politics. The conduct at issue profoundly contradicts that goal.
Notably, reports link Meadows, with Clark in the apparent anti-Hatch Act and §610 cabal. Among other things, Meadows helped introduce Trump to Clark. Meadows also asked Acting Attorney General Rosen to have Clark investigate a false fire fanned by Trump that Georgia’s election workers pulled “ballots out of ‘suitcases.’” It stands to reason that Meadows, as acting chief of staff and gatekeeper to the president, was aware of the illicit communications between Trump and Clark including their meeting in person. It would be valuable to know whether Meadows attended that meeting, and also whether the chief of staff participated in or was aware of the Dec. 27 — “just say the election was corrupt” – conversation, in which Trump also threatened to replace Rosen with Clark.
In addition, on Dec. 22, 2020, while on the government payroll, Meadows traveled to Georgia and met with Frances Watson, Georgia’s lead elections investigator. At Meadows’ suggestion, the following day, President Trump called the Georgia official and urged her to find “the dishonesty” to help overturn the state’s election results. Trump praised Watson by telling her that Meadows had said she’d “been great.”
Meadows also actively participated in Trump’s infamous, recorded phone call on January 2 to Georgia Secretary of State Brad Raffensperger, in which Trump asked him to “find 11,780 votes,” the precise number needed to overturn Georgia’s election. Fulton County DA Fani Wills is investigating that call.
Finally, Meadows is reported to have repeatedly pressed Rosen to investigate baseless conspiracy theories about election fraud. That violated clear and long-established White House and Justice Department contacts policies across administrations of both parties.
Meadows’ actions, if proven, would clearly involve a federal employee using “his official authority or influence for the purpose of interfering with or affecting the result of an election,” and attempting to coerce Rosen to engage in “political activity.”
Significantly for the mens rea element essential to conviction, by the time of the time of Rosen’s December 28 draft letter, and Meadows trip to Georgia, the state had conducted two recounts confirming that Biden had won by more than 11,000 votes, with a third completed the following day. Dozens of state and federal courts had rejected Trump-related election contests alleging ballot fraud, including the Georgia Supreme Court on December 13. And former Attorney General William Barr, who had left office five days before, had declared that the Department had found no widespread voter fraud sufficient to change the election results.
Those facts would provide a jury with powerful evidence that Clark, Trump and Meadows had criminal knowledge and intent that their actions premised on “election fraud” were themselves fraudulent. What’s more, there is likely other evidence at the ready such as Meadows apparent admissions to Sen. Mitch McConnell and White House staff that he knew Trump had lost the election.
Waiting for the DOJ’s Inspector General to complete his general investigation of the Trump DOJ’s election misconduct would be a very large mistake. First, the IG cannot compel testimony of former employees. Second, IG investigations can be slow, risking the loss of fresh memory and documents. For example, it took the Inspector General’s Office more than 18 months to report that the FBI had legitimately launched its investigation of the 2016 Trump Campaign’s coordination with Russia, and well over four years before reporting on FBI contacts with Rudy Giuliani and the media in the 2016 elections.
If the Garland-Monaco Justice Department fails to promptly investigate (and potentially prosecute) these alleged violations, Meadows will be proven right when he disdainfully proclaimed in August 2020 that “Nobody outside of the Beltway really cares” about the Hatch Act. The damage to the Justice Department’s own integrity will also be lasting.
We know that failures to hold public officials to account for publicly aired allegations of criminal conduct gives them a green light to continue or do worse. Conversely, legitimate prosecution of public corruption, consistently pursued, deters it.
The rule of law depends on public officials honoring the line between serving the public and serving their own self-interest and that of their political masters. That requires that those in federal office know that the Political Coercion Act and Hatch Act will be enforced.
In his brief opening remarks at his nomination hearing, Merrick Garland chose to emphasize his commitment to the ensure the Justice Department uphold the rule of law. He said:
“Many of the policies the Justice Department developed during those [post-Watergate] years are the foundation for reaffirming the norms that will ensure the Department’s adherence to the Rule of Law: Policies that protect the independence of the Department from partisan influence in law enforcement investigations; that strictly regulate communications with the White House…”
and
“If I am confirmed, serving as Attorney General will be the culmination of a career I have dedicated to ensuring that the laws of our country are fairly and faithfully enforced.”
This is the moment where action to ensure that promise is needed.