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The Lawfare Podcast
Lawfare Archive: White House Pressure, the Justice Department and the Election
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- [00:00]
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- [01:23]
Benjamin Wittes
Foreign. Hey folks, Ben Whittis here, editor in Chief of lawfare and I just wanted to thank everybody who donated to Lawfare became a material supporter, particularly those who became material supporters for the first time during our annual campaign this past month we raised about $150,000 and that is a measurable percentage of the money that we need to keep bringing you scholarship at the pace of journalism in high value democracy sensitive national security fields. As you know, it is not cheap to bring you this material and we appreciate every single person who helps us make it possible. Those who have donated once, those who donate every month, those whose contributions are comparatively small, those whose contributions are substantial, every little bit helps and we are a lot closer to where we need to be than we were at the beginning of the month. So thank you to everybody.
- [02:59]
Marissa Wong
I'm Marissa Wong, intern at Lawfare with an episode from the Lawfare archive for May 31, 2026 under the second Trump administration, the Department of Justice has been a central part of an effort to investigate the president's claims of election fraud in the 2020 presidential election. This includes the seizure of ballots from Fulton County, Georgia, an audit of the vote in Maricopa County, Arizona, and most recently, the attempt to collect voter registration data from states to audit voter rolls as part of President Trump's March 31 executive order on securing federal elections. For today's archive, I chose an episode from October 9, 2021, in which Benjamin Whittis sat down with Alan Rosenstein and Quinta Jurecic to unpack the Senate Judiciary Committee's interim report, which detailed the first Trump administration's pressure on the Justice Department to support his claims of election fraud in 2020.
- [04:02]
Benjamin Wittes
I'm Benjamin Wittes and this is the Lawfare Podcast Special edition. The majority staff of the Senate Senate Judiciary Committee has issued an interim report entitled Subverting justice how the Former President and His Allies Pressured DOJ to overturn the 2020 election. A lot of it covers ground we knew about before, but it contains a raft of new detail about the President's pressure on the Justice Department Department to support his election fraud claims, the resignation of a U.S. attorney in Georgia, and the bizarre attempt to install as acting Attorney General a Justice Department official who might actually support the President's ambitions. To go over it all, we convened in the virtual Jungle studio Alan Rosenstein and Quinn to Jurassic lawfare senior editors and Bryce Clem, lawfare Associate Editor, who has been reading all the depositions in the matter. We talked about what the committee found, what aspects of it are new, and what we might do about this dramatic turn of events. It's The Lawfare Podcast October 9th White House pressure the Justice Department and the Election Quinta, get us started. What is the contribution of this Senate Judiciary Committee majority interim report? What did it tell us that we didn't already know and what role is it likely to play in the conversation?
- [05:53]
Quinta Jurecic
A lot of what's in the report, the sort of broad strokes of it, have been publicly reported and the Judiciary Committee admits that. In fact the the report explicitly says that the committee began investigating Trump's asks to the Justice Department to overturn the election after reporting came out from the New York Times and the Wall Street Journal in January of 2021 about those efforts. But what this contributes is it provides an enormous amount more detail about what happened there. And the committee has also made available transcripts of the interviews with former Acting Attorney General Jeffrey Rosen, acting Deputy Attorney General Richard Don, the Attorney General for one district in Georgia, BJ pac, who resigned because of Trump's anger with him. So the main findings of the report are that Trump was really, really pressuring Justice Department leadership to underline his false claims about the election results, that the election had been stolen, that Mark Meadows, who is then the Chief of staff, repeatedly reached out to act Attorney General Rosen to initiate investigations of so called election fraud, including some pretty crazy ideas, including an idea that somehow an Italian IT contractor was using military satellites to manipulate voting machines. This. This didn't happen, in case that's not clear. And it includes a lot more detail about the role of Jeffrey Clark, who was a lower down official in the Justice Department. There had been reporting in the Times and the Journal about his role in ess going, it seems, directly to Trump and encouraging Trump to buy into this pretty out there legal theory under which the Justice Department could go to the states and say, hey, we think there's been some chicanery here. You should really just, you know, convene a special legislative session and essentially flip your electoral votes from Biden to Trump. And the report has a lot of detail about sort of what was happening within the Justice Department, how confused and alarmed Rosen and Donahue were by Clark's efforts. And at one point, Clark essentially went to Rosen and said, the President has told me that I can have your job. So I think it really drives home just how close things got at DOJ and just how bad things are. There's details, for example, about a phone call between a number of DOJ officials where they essentially agreed that they would all resign if Clark were put in charge. And so I think it underlines just how bad things were. And that's how the committee frames it. The committee explicitly says, you know, we're still carrying out this investigation, but we found this information alarming enough that we wanted to make it public immediately and share it with the public so we can kind of figure out what to do next. There's a lot more detail here than I'm leaving out, because this report is. Is pretty extensive and so are the transcripts, but those are the broad strokes.
- [09:05]
Benjamin Wittes
Alan, what do you think of the report as a piece of investigative work product? Congressional reports really run the gamut, you know, from partisan hack job to some pretty excellent work product. The Judiciary Committee is often not known as a center for really fine investigative work. What do you make of this as a piece of work product?
- [09:37]
Alan Rosenstein
Mostly, I'm quite impressed they managed to insert a huge amount of detail and color into this discussion. As Quinta pointed out, the broadest strokes of this were. Were known before. But just having Rosen and Donahue go into such detail about the sheer amount of attempted interference by the White House, the things that Trump said, the things that Clark said, that adds a vividness and a drama to this, and I think that's really important because as Quinta points out, what this report really, I think, contributes is to show just how close we got to a profound constitutional crisis. And so in that respect, I Think it's done an enormous service. I mean, it's unfortunate that it's has to be a majority report rather than the report of the. The whole committee. But as you point out, unfortunately, the Judiciary Committee has historically been quite partisan, and so I suspect the Republican members were not interested in signing on to this. And that is a shame, because it is an opportunity and a missed one for Republicans to distance themselves from this really appalling behavior. But ultimately, just to answer your question, I'm super impressed. I mean, at the very least, it set my blood pressure through the roof, which was not a pleasant experience. But I do think speaks to the effectiveness of the report.
- [11:08]
Benjamin Wittes
And just to be clear, this is not even a report of the Democrats on the committee, the majority on the committee. It's a report of the majority staff. Right. How do you think either of you think we should understand, like, what this report and who this report actually represents?
- [11:31]
Quinta Jurecic
I will say I wasn't entirely sure what to make of that because Dick Durbin, who's the majority leader, has been all over the cable news talking about how alarming this report is and how there's a need for really urgent action. So, you know, it's not like the senators are uninvolved. It definitely struck me as a pretty careful piece of work product. I mean, we can talk about this later. But it includes some recommendations about what should be done in response to these events. And the recommendations are pretty careful and sober. You know, they have suggestions for how to change the DOJ White House context policy to make sure that, you know, future chiefs of staff aren't just dialing up random people in the Justice Department and asking them to investigate conspiracy theories that they found on YouTube. They have suggestions for specific statutory provisions that should be clarified to make clear that they apply to efforts to corruptly influence state proceedings regarding federal elections. So my impression reading it is that this is done by somebody who. Or a group of people who really know their stuff and were working carefully. I don't know how that quite interacts with your point about staff versus the majority members, but it did jump out at me.
- [12:49]
Benjamin Wittes
Alan, I think I can resolve the question of what the status of the report is. Can you give a broad characterization of the fact of the existence of the other one and a characterization of who it represents and just that it takes a very different view of the underlying interviews.
- [13:12]
Bryce Clem
Sure.
- [13:13]
Alan Rosenstein
And it's worth noting that on the same day that the majority staff issued its report, the minority Judiciary staff issued a report for itself and ranking member Chuck Grassley in which it disputes a lot of the, if not findings, then a lot of the interpretation of the majority report. So, you know, for example, looking at the table of contents, the first headline after the introduction is that the available evidence shows that President Trump did not use the Justice Department to overturn the election, and then it goes on from there. So it's pretty clear that not only are the Republicans not interested in joining the majority staff report, but that they're going to be actively opposing it, either on factual grounds, though the reporting in the majority report is very strong. So it's going to be hard to poke a lot of holes, I think, in the facts, certainly on interpretive grounds in terms of how to understand the motivations of, in particular, Trump, but also presumably some of the other players who were trying to overturn the election.
- [14:16]
Benjamin Wittes
Yeah. So I think the distinction between a committee report and a staff report is simply that the committee hasn't voted to adopt it. And I believe the reason for that is that this is kind of an interim document by its own account of itself. And so I think what's going on here is, you know, the committee staff decided that there was something urgent to get out here. Whether it was, in fact urgent or not is a different question. But it was important to them to get it out. And so rather than have a kind of, you know, draft that is then circulated and everybody gets to comment, and then the committee has a business meeting and votes, which is what will happen on the final report, they simply issued a staff report that members can claim as much or as little as they want. So, Bryce, you have been reading the underlying interviews or depositions. Tell us about them and what they show, both about the witnesses and about the nature of the process we're experiencing.
- [15:34]
Bryce Clem
So these interviews are really interesting in a number of ways. Rosen and Donahue's interview, two very senior leaders at the Department of Justice at the time. Their interviews provide insight into the calculations that they were making as they were facing sort of an onslaught of requests, both from the White House and from Jeffrey Clark, who we'll get into a little bit later. BJ Pack's interview is really interesting because it brings you sort of on the ground with someone who is faced with, in Georgia, in this case, debunking a number of different claims. So let's go back to Rosen and Donahue's interviews for a moment. Rosen had known Jeffrey Clark, who was at this point, the head of the Civil division. He had known him for 20 years. Let me take you back a little bit. There's Quite a confusing timeline on this one. So Bill Barr resigns, I believe, on December 24th or 23rd. Trump calls Rosen, who is the new acting attorney general, on December 24, and in that conversation, he asks him if he knows Jeffrey Clark. And that sounds really strange to Rosen because why would the President know about this somewhat lower level official? So eventually Rosen talks to Clark, and. And Clark admits to having met with the President, completely subverting the Department of Justice's White House contact policy. And Clark claims that a congressman dragged him into the meeting. But so Trump becomes really fixated on this idea that Jeffrey Clark is going to help. Now, Rosen sort of puts on sort of like the kid gloves with Clark, initially because he's known him for so long. Then eventually, Clark requests two urgent action items, and he sends this in an email to Rosen. The first action item that Clark requests is to have a briefing by the Office of the Director of National Intelligence to see if white hat hackers had accessed the Internet through smart thermostats and basically messed with Dominion voting machines. Now, Rosen knows that this is a completely ridiculous theory, but he's sort of left wondering what to do about that. Then Clark sends him another urgent action item, which is, I think this is all in the same email. Sends him a proof of concept letter for Georgia, which is basically that the Department of Justice, in Clark's view, should send Georgia this letter that says you have to convene your state legislator due to irregularities in the election, and then you should consider appointing a new slate of electors. Now, Rosen and Donahue reject this. Donahue even writes, there's no chance that I would sign this letter or anything remotely like this. And several heated meetings ensue. And I'm skipping over a little bit here. But eventually, Clark tells Rosen that Trump asked if he wanted to be the acting Attorney General if Trump were to fire Rosen. And Rosen's first off, just completely dumbfounded that Clark is telling him this, because Clark is his subordinate at this point. So then Rosen does something that's kind of amusing. He says to Clark, okay, I'll get you that Office of Director of National Intelligence briefing. And Rosen says in his interview that he's basically doing this in order to try to dissuade Clark and tell him that these theories are wrong. He also tells Clark to call BJ Pack because Clark has been pushing these Atlanta fraud things. But BJ Pack, the U.S. attorney for the Northern District of Georgia, has been debunking these things. Fast forward a little bit, a little bit farther. January 3rd is a really big day in this whole story. Clark tells Rosen that Trump is going to install him as the Acting Attorney General. So then I think Quinta mentioned earlier, senior DOJ leadership has a call at this point and they agree to resign if Clark is put in place. Then around 6:00pm Clark, there's a two to three hour meeting in the Oval Office with members of the Office of Legal Counsel, Senior Department, senior Justice Department leadership, including Donahue, Rosen and Clark, and Pat Zepalone is there as well. So during this meeting, basically Trump is asking everyone their opinion about installing Clark as the Acting Attorney General. And it was later described that this meeting was basically six against one that everybody did, but Clark in this meeting wanted Clark to not be the Attorney General. Pat Cipollone even calls the proposed Georgia letter a murder suicide pact at this point. And at the end of this two to three hour meeting, Trump is basically dissuaded completely from installing Clark. So that's pretty much how close it was.
- [20:26]
Benjamin Wittes
And Quinta, does this sound to you, as Brit Hume suggested in response to the release of this, that the, the real salient takeaway is that Trump exercised appropriate leadership and didn't do any of these things?
- [20:44]
Quinta Jurecic
I have missed that. Brit Hume had said that. That reaction reminds me a lot of the responses that we saw to some of the more damning exchanges in the Mueller report, where Mueller reported that, you know, Trump would dial up the Attorney General and say, investigate James Comey, investigate Hillary Clinton, you know, told the White House counsel to destroy his notes or create false notes of a meeting. And the takeaway for defenders of the President was sort of, well, it's okay, because that never actually happened, that the people he was sort of bullying into doing these things put their foot down and convinced him otherwise or distracted him and somehow ensured that it, it didn't happen. I don't find that particularly exonerating. The problem here is that Trump tried to do these things. He tried to work with Clark in this scheme to overturn the election results. And it's sort of there but for the grace of God that Rosen and Donahue and other members of DOJ leadership were able to prevent that from happening. But I don't find that particularly reassuring. It's sort of a situation where, you know, you have an umpteen number of airlocks in the system and all but the last airlock, you know, fell apart. And so we're saying, oh, well, the last one held, so it was okay. No, the problem is that we got all the way to the last barrier between the United States and an illegal usurpation of democracy. Alan, I know you wanted to jump in here.
- [22:24]
Benjamin Wittes
Yeah.
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Alan Rosenstein
I mean, just to echo what. What Quinta said, it's a little bit like having someone with a flamethrower walk up to a house and threaten to burn it down and then be dissuaded from doing so. And then the news story being, you know, arsonist saves house from fire. It's just. It's completely crazy. And the fact that we're even here discussing that there was a debate in the Justice Department whether or not to encourage states to overturn their election results based on nonsense conspiracy theories is itself incredibly damaging. And something that Trump, in addition to a bunch of other players, but Trump in particular, has to own because he created not just a culture, but made a bunch of direct asks to get people to even consider what would have been. And just to be clear, you know, about what this proof of concept that Clark was trying to send out to the states would have been, it would have been a proof of concept of the end of American democracy. And I don't think that's an exaggeration.
- [23:27]
Benjamin Wittes
So, just in fairness to Brit Hume, what he actually tweeted was a criticism of a Washington Post story on this report that says this story never explains why the plans these officials threatened to resign over did not go forward. The answer is that Trump decided against it. It is not to his credit that he even considered it, but his rejection should be part of any story on it.
- [23:55]
Quinta Jurecic
I think that's pushing it, but fair enough.
- [23:59]
Benjamin Wittes
How so? I mean, I'm just trying. Trying to.
- [24:01]
Quinta Jurecic
It strikes me as the same. It's the same thing that Alan was just saying, you know, that the. The arsonist was standing in front of the house with the flamethrower. You know, it's not to his credit that he was considering lighting the house on fire, but the fact that he ultimately backed down when the fire department and, you know, the hostage negotiation squad arrived. Important part of the story.
- [24:22]
Benjamin Wittes
So Bryce, in the Republican questioning of the Republican staff questioning of these witnesses, is this the point that they are emphasizing as well in these questions?
- [24:35]
Bryce Clem
It is to an extent. They're also kind of pursuing a somewhat contradictory line of questions, which is, well, if the President believed and had seen these substantial allegations, isn't it his responsibility to go down and investigate these things? And the witnesses sort of begrudgingly say, yeah, it would be if he believed these allegations to be true. And constantly throughout Trump's contacts with the Department of Justice, he says the American people, they all Say, you guys are disappointing the American people. And just sort of a classic Trumpian technique. But it does appear that he sort of seems to be doing it. I do want to add one note on Jeffrey Clark. After that Oval Office meeting where Trump basically rejects his proposal, Clark gets out of the Oval Office, and he says to everyone else there, to Rosen, to Donahue, Pat Cipollone, he says, I know we were all in there just doing what we thought was best for the country. So no hard feelings. And they all just look at him, completely dumbfounded. So it's not even clear that he understands the ramifications of what he was proposing.
- [25:48]
Alan Rosenstein
I think the point Bryce is making is really important because it gets. It gets at the heart of what we saw throughout the Trump administration. And one of the reasons why, in a sense, the culpability of people like Trump and his inner circle is almost sometimes harder to identify than with. With other, you know, wrongdoing presidents or wrongdoing government officials. And that's. They. And I apologize, I know this is a family podcast, but they seem to really believe their bullshit in a way that is almost unprecedented in American history. So I'm actually willing to accept that Trump literally, subjectively, really believed that Italian hackers or space lasers or Chinese bamboo importers or God knows what were conspiring to steal the election from him. That's quite possible. But what that shows is not that Trump was doing what he thought was best for the country and therefore no harm, no foul, but it shows that Trump is incapable of separating his own desires, his own tendency for magical and wishful thinking. He's unable to separate that from his evaluation of reality. And that makes him even more dangerous, I think, of a president than someone like, let's say, Nixon, who, while engaging in criminality, seemed to actually understand what he was doing. And I think the defense of Trump that while he was just doing what he thought was right for the country is actually similar in a really troubling way to one of the defenses of Trump made most strongly by Alan Dershowitz, one of his lawyers for the first impeachment trial, that anything that he did with respect to the Ukraine and pressuring them to investigate Joe Biden and Hunter Biden, that was not impeachable because he thought that his getting reelected was best for the country, and therefore he was acting in good faith. But in fact, what that shows is that Trump lacks a critically important character trait for a president, which is the ability to separate your personal interests from your official duties. And the fact that with Trump, it appears to be such a profound character flaw that he literally cannot tell reality from delusion is not exculpatory. If anything, it shows even more profoundly why up until the very last moment of his presidency, he was unfit for the office that he was occupying.
- [28:22]
Quinta Jurecic
Just to build on that, I think it's not only this argument is not only an echo of Dershowitz's argument during the first impeachment. It's also an echo of the argument that Bill Barr made as attorney general in defending Trump when the Mueller report was first released. If listeners recall, Barr kind of went out there in a press conference before the release of the report and said, well, you know, Mueller has these instances that he says look like obstruction of justice, but actually Trump was just like really frustrated because he thought he was innocent and so he was mad that he was being investigated and therefore it's fine. Which is a similar version of the same argument that, you know, deep in his heart, Trump thought he was in the right, therefore we shouldn't be concerned by what he was doing. And I think I would agree with Alan in the big picture, if you abstract that out, you end up with a picture of someone who is so detached from reality and from the realities specifically of what his responsibilities are as a leader and as someone who is sworn to preserve, protect and defend the Constitution, that he shouldn't be the president at all.
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- [30:23]
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- [31:26]
Bryce Clem
So I want to jump back to something that we talked about a little bit earlier, which was, you know, Trump ultimately decided against the scheme to install Clark as the acting Attorney General, which is true, and he, and he did shut that down. But there were multiple other tracks that the Department of Justice officials had to deal with. And I want to focus on a Dec. 27 call that Trump has with Rosen and Donahue. It lasts about an hour. And Trump references three Republicans, Jim Jordan, Congressman Scott Perry, and Pennsylvania State Senator Doug Mastriano. And this is the call where Trump says to Rosen and Donahue, just say the election was corrupt and leave the rest to me and the R congressman. That was, in the words of, of Donahue's note. And in a lot of ways, this is sort of inseparable from Trump, this Department of justice track that he's going down to try to challenge the election. This is completely inseparable from all of his other efforts that he's making. He even makes another effort to have a lawyer, Kurt Olson, reach out to the acting Attorney General, Rosen, to basically get him to try to file the Supreme Court petition. So all of these things in Trump's mind, are a part of the same effort. So just because Clark isn't installed, I think you can't say that the entire effort stopped. And eventually the Republican congressman, as we know, did go on to challenge the election results on January 6th.
- [32:47]
Benjamin Wittes
So I want to talk about potential remedies here, and I want to focus on two different avenues of potential remedy. One is the list of recommendations that the committee staff itself makes. And the second is the possibility of bar action against some of the individuals in question, particularly Mr. Clark. So, Quinta, can you get us started here by just summarizing what the recommendations are that the report advances?
- [33:27]
Quinta Jurecic
Sure. So it falls into a few different buckets. First is this question of contacts between the White House and the Justice Department. So the Justice Department did have a policy limiting those contacts during the Trump administration, but it clearly was not abided by as shown in this report. And so part of what the committee recommends is that that policy should be sort of strengthened and systematized. It also recommends that there should be a stricter oversight regime. So listeners of the show are probably aware there are sort of constitutional questions about the extent that to which Congress could attempt to regulate communications between the White House and the Justice Department. But what it can do is create transparency requirements. So what the report suggests is that there should be statutory requirements for the regular release of logs of contacts that fit certain criteria to the Justice Department inspector general. And there's legislation in Congress that would institute this. And then the committee also recommends that there should be a procedure for the inspector general to transmit matters that are of urgent concern for the House and Senate Judiciary committees for quick action. And it also recommends that the inspector general's purview be expanded to include misconduct by Justice Department attorneys, which is a long standing loophole. And again, there's legislation that in Congress that would address some of these issues. There are other proposals, too. The committee suggests that Congress should systematize the policies in the Justice Department against conduct that might influence elections. One aspect of the report that we actually haven't talked so much about is that it's quite critical of Bill Barr for rolling back some of the traditional Justice Department posture that it shouldn't make any statements or do anything that could undermine public confidence, seem to influence an election, and notes that Barr personally in some instances, asked the FBI to investigate supposed instances of election wrongdoing that were had already been debunked, essentially. So the committee suggests that the department should really come down more strongly on that. Then there are other proposals as well. Ones that I found particularly interesting are proposals to clarify obstruction statutes to make clear that behavior like Trump's, which involves sort of leaning on state governments to try to change how they count and certify the vote to make clear that that would be prohibited. And that actually had a, a real echo for me, Ben, of conversations that happened after the release of the Mueller report about the need for Congress to reform the existing obstruction statutes to make clear that they apply to the president. Because we're sort of in a circumstance right now where you could argue that these statutes cover what Trump did. But it's not a slam dunk. And it would be pretty easy to just make it a slam dunk. And then the last bucket is that the committee also recommends bar discipline for Geoffrey Clark. And Alan has looked at this a little more closely than I have. So I'll, I'll Leave this to him. But I did think that it was interesting that, you know, it has these kind of abstract ideas for what to do going forward, but also seems to feel that Clark's behavior is sufficiently egregious that we should also be thinking about punishment for him looking backward from the bar so association.
- [36:55]
Benjamin Wittes
All right, before we get to the question of bar discipline, I want to harp on this contact policy issue because this seems to me to be a, a policy that for post Watergate related reasons we all put a lot of faith in. But it strikes me as wholly, wholly inadequate to the magnitude of the problem that this reveals. If the President of the United States wants to talk to the head of the Civil Division, he's going to be able to do it. It doesn't. The policy can't bind him. It doesn't matter if you say we're strengthening it. Reducing the number of people that are have authorized contact, you know, reducing the number of types of authorized contact. If the President is the rogue elephant and wants to recruit the conspiracy theorist head of the Civil Division who's an environmental lawyer to help him with his conspiracy theories, I don't see how any contact policy is going to be anything more than the smallest of speed bumps in that. And so my question to you, Alan, is, is the committee just kidding itself that this is a plausibly responsive remedy for the problem that they have identified here?
- [38:31]
Alan Rosenstein
I broadly agree with you that this obsession with the contacts policy is not really responsive to the, to the problem. And I do think this is a little bit of, of this is a problem. We have to do something. This is something, this being the context policy reform, I guess we should perform the context policy. But I think the problem with focusing on the context policy is not just that it's ineffective, but that to make it effective, you would have to create such a set of bureaucratic and potentially legal barriers between the White House, the President in particular, and the Justice Department. That would either be unconstitutional because of course, the President is the chief law enforcement officer of the United States. And there really is no question that when it comes to what counts as the unitary executive, the Department of Justice is pretty well in there and also probably counterproductive because at the end of the day, there are plenty of legitimate reasons for there to be close and important coordination between the White House and the Department of Justice. We kid ourselves if we think that law enforcement can or even should be a completely, completely divorced from the priorities of the President. It inevitably has a political dimension, as it should, because it is an expression of US Policy. So if we end up putting these enormous or try to put these walls between the President and DOJ first, the President is just going to find some other way of influencing doj. He's going to find some other set of advisors in the White House who are going to accomplish these same purposes. But most importantly, it detracts us from what is really going on here, which is that the primary way of preventing abuse of White House power is making sure that the person in the White House is not trying actively to abuse that power. Because as our constitutional system is set up, we not just assume, but we require that the president act in good faith and in the interests of the country. And trying to say, well, we can deal with the rogue president through some bureaucratic fixes, I think just entirely misses the point. And I almost wish, though I understand completely understand and in some senses sympathize with the desire to reform and beef up the contacts policy, I almost wish that we weren't wasting our time talking about it because it makes the sound like the problem is much less existential than it really is, which is that we elected and may again in 2024, a authoritarian who is not interested in Democratic and rule of law values. And no contact policy is going to save us from that.
- [41:13]
Benjamin Wittes
Yeah, I just want to really foot stomp that point that there's a, you know, there's a quality at which focusing on the context policy and the details of the contacts policy makes the problem seem like one of bureaucracy, when in fact the problem is not a bureaucratic problem in character. So let's turn to the other major non prophylactic alternative that the committee offers, which is going after Jeffrey Clark and saying, okay, we can't, can't necessarily prevent the president from leaning on Rosen and flirting with making Jeffrey Clark the acting attorney General, but we can sure take it out of his professional hide in retrospect and thus create a disincentive or a real deterrence against behavior like that. Alan, what do you think is the prospect of something like this happening and is it a good idea if it does happen?
- [42:22]
Alan Rosenstein
Well, the prospect for an investigation at least, or a complaint being filed with the DC Bar, which is where Jeffrey Clark has his bar membership. That's. I think the complaint has already been filed. So, you know, we should expect an investigation.
- [42:36]
Benjamin Wittes
I'm not sure we should expect an investigation. The bar counsel in the District dismissed without investigation a complaint about Bill Barr on grounds that it would embroil the Bar Council in politics.
- [42:50]
Quinta Jurecic
Well, I mean, I, look, I think the question is whether Jeffrey Clark, attempting to usurp the structure of the Justice Department and, you know, attempt to overturn an election, rises to the level where the association decides that it's worth taking that risk.
- [43:11]
Alan Rosenstein
I think to Quinta's point, at the highest levels, law and politics kind of intertwines because law depends the practice, the professional practice of law depends on there being such a thing as the rule of law. But the rule of law is not itself a legal phenomenon. It's a political phenomenon. It's the willingness of people like the president, but also elite lawyers like Jeffrey Clark, to uphold it. And so I understand why the Bar association is wary of embroiling itself in this issue. But at the end of the day, this is kind of why it exists. If it's not existing to safeguard the one social and political phenomenon that allows it to exist as a bunch of lawyers, then what exactly is it doing?
- [43:57]
Benjamin Wittes
So is your view that when a Justice Department lawyer contemplates becoming counsel to a sort of self coup by the President, he should have his eye on the, on his license?
- [44:11]
Alan Rosenstein
Yes, I, I am comfortable drawing that line there. And I'm well aware, and I'm actually quite sensitive to the concern about the parade of horribles of. Once we do this, we'll go down the, the line of investigating, you know, any government lawyer for anything that the opposing party or that whatever party has control over the bar association wants. I totally understand that. But this is not, I think, a particularly slippery slope because this is such an, a unique situation. And it is, I think, so many, you know, standard deviations away from kind of even the average bad government lawyer conduct that I do think one can certainly draw some principle distinctions.
- [44:56]
Quinta Jurecic
Yeah, I, I agree with Alan there. I mean, I think there's a couple of points you can make here. I, I would say that, I think that when you get to a point where American politics has gone so far off the rails that the existence of professional institutions that uphold professional standards is actually a pretty good place to turn to say, what, what are you guys doing? You know, what are you here for? But another point, which I, I do think is important is if you conceptualize Clark as a lawyer, who is his client here, because is he, is he representing the United States or has he kind of gone rogue and started representing Donald Trump? Because I think that adds an additional element to how we think about his misconduct here. It's not that, you know, he gave bad legal advice in a memo to, you know, the President of the United States. He's Sort of gone around the usual channels and is trying to help Trump the person illegitimately hold on to his office. That doesn't strike me as something that is appropriate for a Justice Department official to do. And I think it is a pretty clear, bright line that I'm comfortable drawing.
- [46:08]
Benjamin Wittes
So, Bryce, is there any discussion in the depositions of how the senior officials who were interviewed, Donahue and Rosen, perceived Clark's behavior as an ethical or moral matter?
- [46:29]
Bryce Clem
Yeah, I mean, they thought it was absolutely bizarre. I mean, I just want to go back to something earlier in the January 3rd Oval Office meeting with Trump where Clark is advocating for himself to be Attorney General, Pat Cipollone calls the draft letter to Georgia a murder suicide pact and says it will damage anyone and anything that it touches. And, you know, throughout this whole process, Clark is violating the White House contacts policy. And Rosen is telling him that. He's like, why? Why are you doing this? And then he even starts doing his own, quote, unquote, due diligence into Atlanta investigations. And he's going completely off the rails. And Rosen's telling him, who told you to conduct investigations and interview witnesses? And Donahue says, you know, he's getting very, very heated at Clark, sort of understandably. And the whole time, Clark thinks he even says to the acting Attorney General, Rosen, he says, well, the president has offered me the position of acting Attorney General. I told him I would know my decision by Monday. I need to think about that a little bit more. So he's trying to, like, sort of hold over his relationship with the president, trying to hold it over their head. So, I mean, throughout this whole thing, I mean, Rosen says repeatedly, you know, I've known this guy for 20 years and is completely off after the fact. After the January 3rd Oval Office meeting, both Rosen and Donahue say they pretty much haven't spoken to him since. So another interesting thing that happens at the end of this January 3rd meeting is Trump expects Rosen to fire Clark. And he turns to him, he says, well, aren't you going to fire him now? And Rosen basically says, well, I don't have the power to do that. He serves at the pleasure of the president. And then Trump says, well, I'm obviously not going to fire him. So it's just really striking that even Trump can tell that what Clark has done by this point, at the end of a two and a half hour Oval Office meeting, even Trump can tell that what Clark has done has completely subverted his bosses.
- [48:26]
Benjamin Wittes
All right, so before we close, I want to just flag the question of whether there are potential remedies that the committee may have missed. It seems to me that one of them, for example, should be, you know, the confirmation process that Jeffrey Clark was a Senate confirmed official, and perhaps the Senate should be extracting from nominees certain expectations of behavior that they can hold people to. But I'm curious whether any of you have thoughts about additional means that Congress may have to prevent officials from behaving this way.
- [49:12]
Alan Rosenstein
I'm not sure this is necessarily a congressional remedy, but I do think an important thing to consider in the wake of all of this is what the social and professional sanctions should be for this kind of behavior, not just formal ones like barn. Professional discipline. Discipline, though, that's obviously really important. But I suspect that even more important is what sort of reception these individuals, these. These bad actors. And. And based on the reporting in the Senate report and the. The lack of any credible, I think, factual response to it, I'm comfortable, you know, characterizing Clark as a kind of a deeply bad actor in this. In this regard. Regard. And what. What strikes me, I think, is, you know, if we, the legal community, is serious about being a profession, and a profession means a group of people that organize themselves and that regulate themselves and that hold themselves to high standards, right? That means that there has to be, in extreme cases, a sort of professional, even social shunning of those who violate the deepest, most profound values of that profession. Now, I. I say that with a certain reluctance because.
- [50:30]
Benjamin Wittes
Sounds like cancel culture.
- [50:31]
Alan Rosenstein
Well, exactly. Right. I say that with a certain reluctance because I think we live in a very polarized time. We live in. In a environment where a quote, unquote, cancellation can happen really unjustly and you have pylons and social media doesn't help with all of this. And all of that is true. That being said, there are extreme cases where I think the only appropriate and frankly, the only effective remedy is to make clear, right. At the highest levels that if you act this way, right. If you actively try to subvert American democracy, you will not be welcome in polite society.
- [51:07]
Bryce Clem
And.
- [51:08]
Alan Rosenstein
And I think that lawyers, especially elite lawyers, they want to continue being lawyers. They want to continue making a lot of money. But mostly what they want, what they care about most of all, is the good opinion of their peers.
- [51:19]
Benjamin Wittes
Right?
- [51:19]
Alan Rosenstein
That's kind of all that humans ultimately want, right? We're just social animals, right? We want to be liked. And it is striking to me that, you know, Jeffrey Clark, having left the Department of Justice in a way that I think is just the height of legal disgrace, is not a pariah in the legal community. Right. He is the chief litigation director for a right wing conservative legal impact advocacy organization, the New Civil Liberties Alliance. And this, you know, that has all sorts of fancy lawyers and academics and judges on its board. And so I, you know, I would really. I think that the legal community has to think really hard about what to do with these sorts of individuals. And I think that there's a really useful comparison here to be made with. With Alberto Gonzalez, who was Attorney General during the Bush administration and resigned in disgrace after the political firing of several US Attorneys, a scandal that, although big at the time, is trivial, completely meaningless compared to what happened in this situation back then in 2007 or 2008, I think there was still a understanding among the conservative legal establishment that standards had to be upheld. And Gonzalez found himself essentially unemployable for several years now. Over time, he managed to rehabilitate his reputation. He managed to come back, and he's. He's doing fine now.
- [52:44]
Bryce Clem
Right.
- [52:44]
Alan Rosenstein
And I don't think people should be pariahs forever. Right. I think, you know, we should all be willing to forgive those that, you know, truly apologize and try to repent for their actions. But that, at minimum, has to be the approach here. And the fact that, you know, Clark not only seems to be evading this sort of professional and personal social consequence, but is even thriving to me, is exceptionally disturbing. And something that I think, although it's not, you know, a matter of law or policy or Congress or DOJ procedure, is ultimately, at the end of the day, what is going to determine whether or not the United States remains a rule of law, devoted culture, or one where, you know, one party slides into authoritarianism.
- [53:27]
Benjamin Wittes
So you will not be supporting Mr. Clark's visiting professorship at the University of Minnesota?
- [53:34]
Alan Rosenstein
I will not, though I suspect there is little danger of that happening.
- [53:38]
Benjamin Wittes
Quinta, your thoughts?
- [53:40]
Quinta Jurecic
I completely agree with Alan here, and I'd written about this a little bit in November and January for the Atlantic, basically arguing that professional sanctions are too slow and also that in the absence of a sort of systematized truth commission, which I think is really what we need, that social sanctions are a pretty decent fallback. For anyone who's interested, there's a great essay by Jacob Levy, who's at McGill, about the use of social sanctions, who he made this great argument that shunning, and I'm going to quote him here, is, quote, an important fallback when official impunity has been granted. And I kind of think that's where we are here, that official impunity has been granted. You know, the committee is left kind of grasping at the straws a little bit with these recommendations about DOJ contacts, and so we shouldn't set aside the importance of that kind of social sanctioning. In the absence of bigger fixes, we're
- [54:35]
Benjamin Wittes
going to leave it there. Bryce Clem, Alan Rosenstein, Quinta Juaresic thank you all for joining us. The Lawfare Podcast is produced, including in cooperation with the Brookings Institution. Our audio engineer this episode is Kara Schillen of the esteemed firm Goat Rodeo. Hey, have you tweeted the Lawfare Podcast? Rated us on whatever podcast distribution service you found us, shared us on all the socials? I didn't think so. So you'd better do that. You should also buy our merch@thelawfairstore.com you should become a material supporter of Lawfare at Our Patreon page, patreon.com lawfare the Lawfare Podcast is edited by Jen Patya Howell. Our music is performed by Sophia Yan. And as always, thanks for listening.
- [55:38]
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