4.14 January 3, 2021: Clark Informs DOJ Leadership that He Will Accept President Trump’s Offer

¶On January 3rd, Clark informed Rosen that he had decided to accept the President’s offer to serve as the Acting Attorney General. Clark offered Rosen the position of his deputy.²⁷⁴²⁷⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 117–18; Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th. Rosen thought that Clark’s offer was “preposterous” and “nonsensical.”²⁷⁵²⁷⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 117–18; Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th. Rosen told the Select Committee that “there was no universe where I was going to do that to stay on and support someone else doing things that were not consistent with what I thought should be done.”²⁷⁶²⁷⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 117–18; Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th. Donoghue believed it was a done deal, and Clark would become the head of DOJ. But Pat Cipollone told Rosen that it was “not a done deal and that we should fight this out at the White House.”²⁷⁷²⁷⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 118.

¶White House call logs from January 3rd show that President Trump and Clark spoke four times that day starting at 6:59 a.m.²⁷⁸²⁷⁸ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000007891_0001 - 076P-R000007891_0009 (January 3, 2021, White House Presidential Call Log). The first three calls of the day, two in the morning and one in the early afternoon, show that the President spoke with “Mr. Jeffrey Clark.”²⁷⁹²⁷⁹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000007891_0001 - 076P-R000007891_0009 (January 3, 2021, White House Presidential Call Log). The final call between the two of them, from 4:19 to 4:22 p.m., however, shows that President Trump spoke to “Acting Attorney General Jeffrey Clark,” suggesting that Clark had, in fact, accepted the President’s offer.²⁸⁰²⁸⁰ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000007891_0001 – 076P-R000007891_0009 (January 3, 2021, White House Presidential Call Log).

¶Acting Attorney General Rosen told the Select Committee that he would have felt comfortable being replaced by either Donoghue or Engel, but he did not “want for the Department of Justice to be put in a posture where it would be doing things that were not consistent with the truth, were not consistent with its own appropriate role, or were not consistent with the Constitution.”²⁸¹²⁸¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th.

¶As a result, Rosen took four immediate steps to try and prevent Clark’s ascension to Attorney General. First, he called Meadows and asked him to set up a meeting for that evening with President Trump.²⁸²²⁸² Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th. Second, he spoke to Cipollone, who told Rosen that Clark’s appointment was not inevitable and that he would also be at the meeting that evening to support Rosen and Donoghue.²⁸³²⁸³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 118; Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th. Third, Rosen called Engel and asked him to come to DOJ headquarters so he could attend the White House meeting.²⁸⁴²⁸⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th. Finally, Rosen asked Donoghue and another senior Department attorney named Patrick Hovakimian to convene a meeting of the rest of the Department’s leadership to describe the situation to them and hear how they would react to Clark’s appointment.²⁸⁵²⁸⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th.

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¶Hovakimian set up a conference call. Although some of the Assistant Attorneys General were not able to participate in the call, all of those who did agreed that they would resign if Rosen were removed from office.²⁸⁶²⁸⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th (“And so it was unanimous; everyone was going to resign if Jeff Rosen was removed from the seat,” Donoghue explained). The only exception was John Demers, the Assistant Attorney General for the National Security Division. Donohue encouraged Demers to stay on because he didn’t want to further jeopardize national security. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 119–20.Show full note Pat Hovakimian drafted a resignation letter that read:

This evening, after Acting Attorney General Jeff Rosen over the course of the last week repeatedly refused the President’s direct instructions to utilize the Department of Justice’s law enforcement powers for improper ends, the President removed Jeff from the Department. PADAG Rich Donoghue and I resign from the Department, effectively immediately.²⁸⁷²⁸⁷ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000729 (January 3, 2021, Resignation Letter by Patrick Hovakimian).

¶Hovakimian never sent the letter because the threat of mass resignations dissuaded President Trump from replacing Rosen. Regardless, the letter stated a plain truth: President Trump was trying to use DOJ for his own “improper ends.”

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The January 3, 2021, Oval Office meeting

¶At Rosen’s request, White House Chief of Staff Mark Meadows arranged a meeting with the President at 6:15 p.m. that evening.²⁸⁸²⁸⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 121–22; Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th.

¶We should pause to reflect on the timing and purpose of the meeting. Congress was set to meet in a joint session in less than 72 hours. The States had already certified their electors. Former Vice President Biden was going to be certified as the winner of the 2020 Presidential election. There was no material dispute over Biden’s victory. Trump and his lawyers had not produced any evidence of significant fraud. Instead, they presented one nonsensical conspiracy theory after another. The DOJ and FBI were forced to debunk these claims—and they did.

¶None of this stopped President Trump’s effort to subvert DOJ. Quite the opposite. The President pushed forward with a plan to install Jeff Clark as the Acting Attorney General, apparently to attempt to interfere with the certification of the electoral college vote on January 6th. It is for this reason Rosen requested an emergency meeting on January 3rd.

¶Before heading into the Oval Office, Rosen and Donoghue discussed the possible leadership change with Cipollone and Pat Philbin. “They were completely opposed to it,” Donoghue explained.²⁸⁹²⁸⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 122. In fact, no one who attended the Oval Office meeting supported the leadership change—other than Jeff Clark.²⁹⁰²⁹⁰ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 127. “It was definitely a consensus. We were all on the same page except for Jeff Clark,” Donoghue said. Id. The Oval Office meeting attendees include Jeffrey Rosen, Richard Donoghue, Pat Cipollone, Pat Philbin, Eric Herschmann, Steve Engel, Jeff Clark and President Trump. See id., at 123.Show full note Donoghue didn’t initially join the meeting, but the President soon called him in.²⁹¹²⁹¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 122.

¶During the meeting, Clark attempted to defend the last-minute move to make him Acting Attorney General. Clark said he would “conduct real investigations that would, in his view, uncover widespread fraud.”²⁹²²⁹² Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 124. Clark declared that this was the “last opportunity to sort of set things straight with this defective election,” and he had the “intelligence,” the “will,” and “desire” to “pursue these matters in the way that the President thought most appropriate.”²⁹³²⁹³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 124. Everyone else quickly disagreed.²⁹⁴²⁹⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 124–25.

¶President Trump asked Donoghue and Engel what they would do, and both confirmed they would resign.²⁹⁵²⁹⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 125. Donoghue added that theirs would not be the only resignations. “You should understand that your entire Department leadership will resign,” Donoghue recalled saying.²⁹⁶²⁹⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 125. This included every Assistant Attorney General. “Mr. President, these aren’t bureaucratic leftovers from another administration,” Donoghue continued.²⁹⁷²⁹⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 125. “You picked them. This is your leadership team. You sent every one of them to the Senate; you got them confirmed.”²⁹⁸²⁹⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 125. Donoghue argued that the President would look bad in the wake of the mass resignations. “What is that going to say about you, when we all walk out at the same time?”²⁹⁹²⁹⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 125. Donoghue recalled asking the President. “And what happens if, within 48 hours, we have hundreds of resignations from your Justice Department because of your actions? What does that say about your leadership?”³⁰⁰³⁰⁰ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 125. Steve Engel reinforced Donoghue’s point, saying that Clark would be leading a “graveyard.”³⁰¹³⁰¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 125.

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¶White House Counsel Pat Cipollone threatened to resign as well, describing Clark’s letter as a “murder-suicide pact.”³⁰²³⁰² Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 126. Cipollone warned that the letter would “damage everyone who touches it” and no one should have anything to do with it.³⁰³³⁰³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 126–27.

¶Some of the participants in the meeting argued that Clark was the wrong person for the job of Attorney General. Clark attempted to defend his credentials, arguing that he had been involved in complicated civil and environmental litigation.³⁰⁴³⁰⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 126. “That’s right. You’re an environmental lawyer,” Donoghue fired back.³⁰⁵³⁰⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 126. “How about you go back to your office, and we’ll call you when there’s an oil spill.”³⁰⁶³⁰⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 126.

¶The meeting lasted approximately 3 hours.³⁰⁷³⁰⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 133. Only toward the end of the contentious affair did President Trump decide to reverse his earlier decision to make Clark the Acting Assistant Attorney General. Donoghue recalled President Trump addressing Clark along the following lines:

I appreciate your willingness to do it. I appreciate you being willing to suffer the abuse. But the reality is, you’re not going to get anything done. These guys are going to quit. Everyone else is going to resign. It’s going to be a disaster. The bureaucracy will eat you alive. And no matter how you want to get things done in the next few weeks, you won’t be able to get it done, and it’s not going to be worth the breakage.³⁰⁸³⁰⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 131–32.

¶Clark tried to change President Trump’s mind, saying “history is calling, this our opportunity” and “we can get this done.”³⁰⁹³⁰⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 132. But the President was clearly rattled by the threat of mass defections and reiterated that the change would not happen. President Trump then wondered what would happen to Clark, and if Donoghue was going to fire him. Donoghue explained that only the President had that authority. That was the end of the matter. “And we all got up and walked out of the Oval Office,” Donoghue recalled.³¹⁰³¹⁰ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 132.

¶But for one DOJ employee, the matter was not entirely settled. During the January 3rd meeting in the Oval Office, President Trump complained bitterly about BJay Pak, the U.S. Attorney for the Northern District of Georgia.³¹¹³¹¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 129–31. Barr had tasked Pak with investigating the State Farm Arena video in early December 2020. Like the FBI and Georgia State officials, Pak concluded that nothing nefarious had occurred. President Trump was dissatisfied.³¹²³¹² Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Byung Jin Pak, (May 19, 2022), pp. 11–19.

¶“No wonder nothing’s been found in Atlanta, because the U.S. attorney there is a Never Trumper,” Donoghue recalled the President saying.³¹³³¹³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 129. Donoghue objected, saying Pak had “been doing his job.”³¹⁴³¹⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 129. But the President insisted, pointing out that Pak criticized him years earlier. “This guy is a Never Trumper,” the President reiterated.³¹⁵³¹⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 129. “He should never have been in my administration to begin with. How did this guy end up in my administration?”³¹⁶³¹⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 129. The President threatened to fire Pak.³¹⁷³¹⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 129. When Donoghue pointed out that Pak was already planning to resign the next day, a Monday, President Trump insisted that it be Pak’s last day on the job.³¹⁸³¹⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 129–30. Pak later confirmed to Donoghue that he would be leaving the next day.³¹⁹³¹⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 134–35.

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¶President Trump asked if those in attendance at the Oval Office meeting knew Bobby Christine, who was the U.S. Attorney for the Southern District of Georgia.³²⁰³²⁰ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 130. Even though Pak had a first assistant, who was next in line for Pak’s job upon his resignation, President Trump wanted Christine to take the role.³²¹³²¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 130. Christine did take over for Pak, but he did not find any evidence of fraud either. It was Donoghue’s impression that Christine “concluded that the election matters . . . were handled appropriately.”³²²³²² Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 135–36.

¶Later in the evening of January 3rd, President Trump called Donoghue to pass along yet another conspiracy theory.³²³³²³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 133–34. The President had heard that an ICE agent outside of Atlanta was in custody of a truck filled with shredded ballots.³²⁴³²⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 133–34. Donoghue explained that ICE agents are part of the Department of Homeland Security, so the matter would be under that Department’s purview. President Trump asked Donoghue to inform Ken Cuccinelli.³²⁵³²⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 134. That story—like all the others—turned out to be fiction when DOJ investigators evaluated the claim. The truck was carrying shredded ballots, but they were from a previous election. The old ballots had been shredded to make room for storing ballots from the 2020 election.³²⁶³²⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 134–37.

4.15 President Trump’s Unprecedented Attempt to Subvert the DOJ

¶The most senior DOJ officials at the end of President Trump’s term stopped him from co-opting America’s leading law enforcement agency for his own corrupt purposes. Recall that Attorney General Barr commented “you can’t live in a world where the incumbent administration stays in power based on its view, unsupported by specific evidence, that the election—that there was fraud in the election.³²⁷³²⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of William Barr, (June 2, 2022), p. 66.

¶Richard Donoghue concluded that Jeffrey Clark’s letter “may very well have spiraled us into a constitutional crisis.”³²⁸³²⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th.

¶Jeffrey Rosen summed up his short time as the Acting Attorney General like this:

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[D]uring my tenure, we appointed no special prosecutors, we sent no letters to States or State legislators disputing the election outcome; we made no public statements saying the election was corrupt and should be overturned; we initiated no Supreme Court actions, nor filed or joined any other lawsuits calling into question the legitimacy of our election and institutions.³²⁹³²⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Jeffrey Rosen, (Oct. 13, 2021), pp. 8–9.

¶President Trump attempted to get DOJ to do each of those things.

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