I’m traveling. So we’re digging into the Our Land archives and rerunning a recent item from June. Why this one? Because it focuses on Jeffrey Clark, the former Justice Department official who was cited anonymously as “co-conspirator 4” in the historic federal indictment that accused Donald Trump of criminally subverting American democracy. When I wrote this piece, it was not yet clear whether special counsel Jack Smith would go beyond his indictment of Trump for allegedly swiping classified documents. At that time, I noted that it was essential for Smith to bring charges related to the Trump effort to overturn the 2020 election and pointed out that if it was too difficult to mount a strong legal case against Trump, then Smith needed to target Trump’s henchmen. I nominated an obvious choice: Clark. As it turns out, Smith did go after the biggest fish. That edition of Our Land detailed Clark’s role in Trump’s attempted coup, and it helps to explain why Clark made the list of co-conspirators and might end up himself being indicted, along with the other schemers.
Plus, because I am on Cape Cod, I am repeating a review I recently included in “Watch, Read, and Listen List” (which typically only premium subscribers receive) for the gritty crime series Hightown, which is set on the Cape. Vicious drug dealers, gangland murders, strip clubs, fentanyl overdoses, tough cops—thankfully, that’s not my vacation experience. But these are the ingredients for a top-notch show.
As serious as is the federal 37-count felony indictment of Donald Trump for his alleged pilfering of classified documents containing national security secrets, this historic action still has a bit of the feel of busting Al Capone for tax evasion. After all, Trump attacked the very foundation of American democracy, fraudulently declaring the 2020 election was rigged, mounting assorted schemes to overturn the legitimate results, and, finally, inciting a violent attack on the US Capitol in a craven attempt to retain power. All of that is far more consequential—and far more dangerous—than holding several dozen documents in a bathroom, albeit one with a chandelier.
This is not to challenge the gravity of the charges leveled against Trump by special counsel Jack Smith nor to suggest this case ought not to have been brought. It is important that justice be applied to a former president as it would any of us regular folk. Look at Kendra Kingsbury, the former FBI intelligence analyst who this week was sentenced to nearly four years in prison for keeping classified documents in her Dodge City, Kansas, home. Her case bears a stark similarity to United States of America vs. Donald J. Trump. Trump should be treated no different.
Yet this indictment does not address Trump’s greatest transgressions. This is why it is crucial for Smith, who is also investigating the Trump-driven attempts to overturn the election, to do all that is reasonable and within his authority to develop a case on that front—which he may well be doing. Perhaps between the time I write these words and they hit your inbox, we will learn something about such an effort. This is an urgent task, for it’s vital that the American system defend itself, first by signaling that such assaults cannot and will not be accepted, and then by creating powerful and visible disincentives for anyone who would attempt this sort of skullduggery in the future.
It may be that building a case against Trump for attempting a coup and sparking an insurrectionist coup is just too difficult. Mob bosses are famously slippery defendants. They give orders in veiled language. (Hey, you know that thing you gotta do? Well, you gotta do it.) When Michael Cohen, Trump’s onetime personal lawyer and fixer, testified before Congress in 2019, he spelled it out: “He doesn’t give you questions, he doesn’t give you orders. He speaks in a code, and I understand the code because I’ve been around him for a decade.” It’s tough to nail someone like that. But convicting Trump of having committed crimes against the Constitution is not the only way to send a message.
A mob boss needs lieutenants. Targeting them can be an effective way to break up a criminal enterprise and to show others the risks they will face should they engage in criminal activity. The Justice Department’s prosecution of more than 1,000 January 6 rioters has undoubtedly prompted some Trumpers to think twice before rushing to the barricades once more for Trump. In fact, as occasions have arisen when Trump extremists might have gathered to demonstrate support for Dear Leader, they were warned by fellow Trumpers to forego the opportunity out of concern it could be a trap orchestrated by the Deep State to round up Trump loyalists. That has been one good outcome of these prosecutions.
If Smith can’t land the big whale, he ought to go after the medium-sized fish—but who? It may be presumptuous of me to nominate candidates, but there clearly is one person who deserves scrutiny in this regard: Jeffrey Clark.
Clark, you might recall, was the senior Justice Department official in charge of the environmental and civil divisions. Within the department, he championed Trump’s Big Lie and the assorted conspiracy theories about the 2020 election, and he schemed to have the DOJ falsely proclaim the official vote tallies fraudulent and instruct Georgia to toss out its results. His efforts were opposed by acting Attorney General Jeff Rosen (who replaced Bill Barr in the final weeks of the Trump presidency) and acting Deputy Attorney General Richard Donoghue. But they were welcomed by Trump, who tried to replace Rosen with Clark to advance this plot. Trump only abandoned the plan when, during a dramatic Oval Office meeting, he was informed that the entire Justice Department leadership team would resign if he pulled such a stunt.
The Trump-Clark conspiracy to misuse the Justice Department—which was assisted by several House Republicans—was well-detailed in a Senate Judiciary Committee report released in October 2021. At that time, Sen. Dick Durbin (D-Ill.), the committee chair, noted that the report showed, “America was only a half-step away from a full-blown constitutional crisis.” The report fingered Clark as a key player in this troubling caper. Legal experts have noted that Clark’s attempt to pervert the operations of the Justice Department might have violated numerous laws, and the Judiciary Committee requested that the DC Bar open an investigation to determine if Clark merited disciplinary action. (A disciplinary procedure against Clark was initiated and is currently under way.)
Why should we pick on Clark? First, he was a main conspirator in Trump’s attempted coup. Moreover, he does not seem to have learned the appropriate lessons from that experience. These days, Clark is back in the news for leading a right-wing crusade that promotes the notion that the Justice Department should not operate independently of the president. In other words, the chief executive should be able to direct prosecutions and derail those he dislikes. This would reverse the post-Watergate rules that established a degree of distance between the White House and the DOJ, particularly its investigative and prosecutorial powers.
As the New York Times put it:
Like other conservatives, Mr. Clark adheres to the so-called unitary executive theory, which holds that the president of the United States has the power to directly control the entire federal bureaucracy and Congress cannot fracture that control by giving some officials independent decision-making authority.
Imagine if Trump had possessed such power following the 2020 election. He and Clark might have been able to succeed with their anti-constitutional coup.
And here’s a frightening thought: should Trump return to the White House, Clark is likely to be in line for a top Justice Department position, perhaps attorney general. A paper he recently published denouncing DOJ independence could well become the blueprint for Trump’s especially Trumpy Justice Department.
There have been signs that Smith’s probe, which includes investigating the GOP scheme to use fake electors to block the certification of Joe Biden’s victory, has focused on Clark. A year ago, federal investigators searched his home. But whatever is occurring with this inquiry, it hasn’t prompted Clark to lay low and STFU. He’s banging the drum for more presidential power and auditioning for a top post in a second Trump administration.
Smith is a diligent and gutsy prosecutor. Maybe he will drop the hammer on Clark or others. (And we’re waiting to see if Fulton County district attorney Fani Willis this summer will indict Trump and other schemers for crimes related to their machinations to reverse the vote in Georgia.) Certainly, any indictment of Trump or his handmaids for their Big Lie wrongdoing will be dismissed by MAGA-land, Republicans, and the conservative media as yet another unfair anti-Trump Deep State conspiracy and more “weaponization of the government.” But for the portion of the United States that is sane and rational—which is a majority—a successful prosecution will be an important declaration: You don’t get to attempt a coup and go unpunished. That seems simple and straightforward. But it’s a message that has yet to be delivered.
Got anything to say about this item—or anything else? Email me at ourland@motherjones.com.
