Reports that Matter

Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol · 2022

4.9 December 28, 2020: The Clark Letter

Section 43 of 104

4.9 December 28, 2020: The Clark Letter

On December 28, 2020, Clark sent a 5-page draft letter to Donoghue and Rosen.181 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-07262021-000697 – HCOR-Pre-CertificationEvents-07262021-000702. The letter was addressed to three Georgia State officials: Governor Brian Kemp, Speaker of the House David Ralston, and President Pro Tempore of the Senate Butch Miller. It contained places for Rosen and Donoghue to affix their signatures, which they steadfastly refused to do.182 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-07262021-000697 – HCOR-Pre-CertificationEvents-07262021-000702.; 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-06032021-000200 (December 28, 2020, email from Richard Donoghue to Jeffrey Clark, cc’ing Jeffrey Rosen, including Rosen’s reply to Donoghue; 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. The letter, if signed and sent, may very well have provoked a constitutional crisis.183 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.

The letter was attached to an email from Clark, in which he requested authorization to attend a classified briefing by the Office of the Director of National Intelligence (ODNI) “led by DNI Ratcliffe on foreign election interference issues.”184 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-07262021-000697 – HCOR-Pre-CertificationEvents-07262021-000702. ODNI did not find any foreign interference in the voting process or counting,185 See National Intelligence Council, Intelligence Community Assessment: Foreign Threats to the 2020 US Federal Elections, (Mar. 10, 2021), available at https://www.dni.gov/index.php/newsroom/reports-publications/reports-publications-2021/item/2192-intelligence-community-assessment-on-foreign-threats-to-the-2020-u-s-federal-elections (declassified version of a January 7, 2021, report to President Trump, senior Executive Branch officials, and Congressional leadership). The report concluded, among other things, “We have no indications that any foreign actor attempted to alter any technical aspect of the voting process in the 2020 US elections, including voter registration, casting ballots, vote tabulation, or reporting results.” but Clark apparently believed some of the conspiracy theories that had been floated. Specifically, Clark claimed that “hackers have evidence (in the public domain) that a Dominion machine accessed the internet through a smart thermostat with a net connection trail leading back to China.” Clark added: “ODNI may have additional classified evidence.”186 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-07262021-000697 – HCOR-Pre-CertificationEvents-07262021-000702. This crackpot claim had been shared by other Trump officials and associates as well.187 Zachary Cohen & Sara Murray, “New Details Shed Light on Ways Mark Meadows Pushed Federal Agencies to Pursue Dubious Election Claims,” CNN, (Dec. 2, 2021), available at https://www.cnn.com/2021/12/02/politics/mark-meadows-election-fraud-liaison/index.html; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022) at pp. 168–69. Ultimately, after Clark received the ODNI briefing, “he acknowledged [to Donoghue] that there was nothing in that briefing that would have supported his earlier suspicion about foreign involvement.”188 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 113.

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Clark intended to send the letter to officials in Georgia and several other contested States that President Trump needed to flip if he was going to overturn the election results. “The Department of Justice is investigating various irregularities in the 2020 election for President of the United States,” Clark wrote.189 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-07262021-000697 – HCOR-Pre-CertificationEvents-07262021-000702. Clark continued: “The Department will update you as we are able on investigatory progress, but at this time we have identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.”190 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-07262021-000697 – HCOR-Pre-CertificationEvents-07262021-000702.

Clark continued by arguing that Georgia’s State legislature should call a special session. “In light of these developments, the Department recommends that the Georgia General Assembly should convene in special session so that its legislators are in a special position to take additional testimony, receive new evidence, and deliberate on the matter consistent with its duties under the U.S. Constitution,” Clark wrote.191 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-07262021-000697 – HCOR-Pre-CertificationEvents-07262021-000702. Clark referenced the fake electors that the President and his campaign organized and argued that there were two competing slates of electors, both of which were legitimate.192 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-07262021-000697 – HCOR-Pre-CertificationEvents-07262021-000702. “The Department believes that in Georgia and several other States, both a slate of electors supporting Joseph R. Biden, Jr., and a separate slate of electors supporting Donald J. Trump, gathered on [December 14, 2020] at the proper location to cast their ballots, and that both sets of those ballots have been transmitted to Washington, D.C., to be opened by Vice President Pence,” Clark wrote.193 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-07262021-000697 – HCOR-Pre-CertificationEvents-07262021-000702.

The letter was a lie. Senior DOJ officials—Barr, Rosen and Donoghue—had repeatedly stated the opposite. They found no evidence of fraud that would have impacted the election’s results—none. But since mid-November, the Trump Campaign’s legal team under Giuliani attempted to execute its dual-track strategy of both filing lawsuits and convincing state legislatures in contested states to appoint separate slates of Presidential electors for President Trump.194 See Chapters 2 and 3 regarding the Trump Campaign’s efforts to overturn the results of the election in contested states and have fake Electoral College electors submit fake votes to Congress. By late December, however, the dual-track approach had largely failed, and no legislatures had sent a second lawful slate of electors for Trump to Congress. Clearly, President Trump and his campaign team could not get the job done. So, the President and those around him sought to use the hefty imprimatur of the U.S. Department of Justice to achieve the same thing. No doubt, a letter coming from the Department of Justice is different from a meandering call from Giuliani or one of his associates. And, because it was December 28th and there was little more than a week until the January 6th joint session of Congress, President Trump needed more, and soon. Clark’s letter, which laid out a plan that was almost identical to what President Trump and his team had pressured State officials to carry out virtually since election day, could have been just what President Trump needed.

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Several examples demonstrate the parallels between President Trump’s and Rudolph Giuliani’s approach to overturning the election in November and December, and what Clark proposed in this letter. First, the letter sought to have the Georgia State legislature convene a special session to focus on allegations of fraud in the election.195 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-07262021-000697 – HCOR-Pre-CertificationEvents-07262021-000702. Giuliani and his team had been making calls to State legislatures and telling them in both official and unofficial State legislature committee hearings that State legislatures should convene in special sessions.196 See Chapter 2 for additional information on these hearings. They also argued that State legislatures had the authority to convene a special session themselves, despite limitations in State law requiring such a session to be convened by the governor.197 See Chapter 2; see also Ga. Const., art. V, § 2, ¶ VII. Clark included the same argument in his draft letter.198 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-07262021-000697 – HCOR-Pre-CertificationEvents-07262021-000702.

Despite the similarities between the requests in Clark’s proposed letter and the requests that President Trump and his team made to State officials for nearly 2 months, the extent to which Clark directly coordinated his actions with the Trump Campaign and its outside advisors is unclear. Clark asserted his Fifth Amendment rights and various other privileges to avoid answering the Select Committee’s questions about these and other topics.202 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Jeffrey Clark, (Feb 2, 2022), pp. 24–27. When Giuliani was asked during his Select Committee deposition whether he remembered discussing DOJ issuing a letter like Clark’s, Giuliani refused to answer because it implicated attorney-client privilege with President Trump, but when asked if he recalled ever recommending that Clark be given election-related responsibilities at DOJ, Giuliani said, “I do recall saying to people that somebody should be put in charge of the Justice Department who isn’t frightened of what’s going to be done to their reputation, because the Justice Department was filled with people like that.”203 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Rudolph Giuliani, (May 20, 2022), pp. 101–03. And the investigation has also revealed that Clark and John Eastman were in communication throughout this period.204 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman production), Chapman061893 (January 1, 2021, emails between Jeffrey Clark and John Eastman); see Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Verizon Production, July 1, 2022) (showing five calls between John Eastman and Jeffrey Clark from January 1, 2021, through January 8, 2021).

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One person who had worked with Eastman and others in his circle was a lawyer installed to work with Clark at the Department of Justice in mid-December—the final weeks of the Trump administration—named Ken Klukowski.205 See, e.g., Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Kenneth Klukowski (Dec. 15, 2021), p. 182. The Select Committee questioned, and sought documents from, Klukowski about his interactions with Eastman and others related to the 2020 election and the January 6th joint session of Congress. Klukowski, however, objected to certain questions, and withheld a number of relevant communications, on the basis of attorney-client privilege, work product, or the First Amendment, including communications that he had with Eastman. For example, on December 9th, before Klukowski joined the Department of Justice, he sent an email to Eastman with an attachment of draft talking points arguing that state legislators in states where Biden won could disregard the election results and appoint electors for Trump. See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman028219, Chapman028220 (December 9, 2020, email from Klukowski to Eastman, attaching memo). Those same talking points were circulated the same day among Ken Blackwell, Ed Meese, John Eastman, Jason Miller, Alan Dershowitz, and Chief of Staff Mark Meadows with Blackwell’s comment, “A constitutional road map to victory and DJT’s reelection! It’s a matter of political will and courage to do the right thing.” See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman027943, Chapman027944 (Klukowski was not included on the email from Blackwell, but his talking points were attached). During his deposition with the Select Committee, Klukowski said that the document containing the talking points looked like a document he had drafted, but asserted attorney-client privilege when asked certain questions asked about the document. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Deposition of Kenneth Klukowski, (June 10, 2022), pp. 27-29. The Select Committee also obtained from a source other than Klukowski an email sent to him, Eastman, Rep. Louis Gohmert’s Chief of Staff, and others on December 28th with the subject line “VP Briefing on 1/6/21 Meeting” and a message from Edward Corrigan that said, “I believe the VP and his staff would benefit greatly from a briefing by John and Ken” but cautioned to “make sure we don’t overexpose Ken given his new position.” See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman056164 (December 28, 2020, email to Klukowski and others). Klukowski said he never participated in such a briefing, but Eastman did in the days leading up to January 6th and encouraged the Vice President to prevent or delay the certification of the presidential election during the joint session of Congress. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Kenneth Klukowski, (June 10, 2022), pp. 50–57; see also Chapter 5 about Eastman and his communications with the Vice President. As described here, Klukowski drafted the letter for Clark that included discussions about state legislatures, Electoral College electors, and the joint session of Congress. Klukowski was a Trump administration political appointee serving as a senior counsel under Clark in DOJ’s Civil Division.206 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Kenneth Klukowski (Dec. 15, 2021), p. 17. After serving as a lawyer in the Office and Management and Budget (OMB) for more than a year and volunteering as a lawyer for the Trump Campaign after election day, Klukowski only joined the Department when the administration’s personnel staff “expedite[d]” his appointment because the White House’s Presidential Personnel Office “want[ed] him in soon.”207 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Kenneth Klukowski, (Dec. 15, 2021), p. 23; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HouseSelect-Jan6-PartII-12142021-000104. Klukowski’s first day on the job was December 15th. When asked why he would be willing to start a job on December 15th that would end by January 20th, Klukowski said that he had been trying to get to the Department of Justice for several months, he was “hopeful” that he could “get as many medals on my chest as possible during that short period of time,” and “given that it was going to cross the New Year’s dateline, [he] figured [his] resume would say Department of Justice 2020 and 2021,” enabling him to get into an interview for future jobs before a future employer “would find out how few of days in each of those calendar years we were actually talking about.” Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Kenneth Klukowski, (Dec. 15, 2021), pp. 30, 41.

On the morning of December 28th, Clark asked Klukowski to draft the Georgia letter for him.208 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Kenneth Klukowski, (Dec. 15, 2021), pp. 65–66. Clark dictated the substantive key points of the letter to Klukowski and told him exactly what to include.209 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Kenneth Klukowski, (Dec. 15, 2021), pp. 71–73. After several meetings with Clark throughout the day to update him on progress, Klukowski turned in his assignment and gave the letter to Clark, which Clark sent along to Acting Attorney General Rosen and Acting Deputy Attorney General Donoghue, as described above.210 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Kenneth Klukowski, (Dec. 15, 2021), pp. 66, 75–76.

Donoghue quickly responded to Clark’s email, stating “there is no chance that I would sign this letter or anything remotely like this.”211 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-06032021-000200 (December 28, 2020, email from Richard Donoghue to Jeffrey Clark, cc’ing Jeffrey Rosen, including Rosen’s reply to Donoghue). The plan set forth by Clark was “not even within the realm of possibility.”212 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-06032021-000200 (December 28, 2020, email from Richard Donoghue to Jeffrey Clark, cc’ing Jeffrey Rosen, including Rosen’s reply to Donoghue). Donoghue warned that if they sent Clark’s letter, it “would be a grave step for the Department to take and it could have tremendous Constitutional, political and social ramifications for the country.”213 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-06032021-000200 (December 28, 2020, email from Richard Donoghue to Jeffrey Clark, cc’ing Jeffrey Rosen, including Rosen’s reply to Donoghue). Contrary to President Trump’s and Clark’s wild claims about the election, Donoghue stressed that DOJ’s ongoing investigations related to matters of such a “small scale that they simply would not impact the outcome of the Presidential Election.”214 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-06032021-000200 (December 28, 2020, email from Richard Donoghue to Jeffrey Clark, cc’ing Jeffrey Rosen, including Rosen’s reply to Donoghue). Clark’s assertion to the contrary was baseless.

Donoghue and Rosen reaffirmed their strong opposition to the draft letter in a “contentious” meeting with Clark on December 28th.215 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 81–82. “What you are doing is nothing less than the United States Justice Department meddling in the outcome of a presidential election,” Donoghue admonished Clark, to which Clark indignantly responded, “I think a lot of people have meddled in this election.”216 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 82.

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Under questioning by Rosen and Donoghue, Clark eventually also revealed that he had been in a meeting in the Oval Office with President Trump. Donoghue demanded to know, “Why the hell are we hearing your name from the President of the United States and a Congressman?”217 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 83. When Clark was reminded that meeting the President without authorization or informing his superiors was a clear violation of the White House contacts policy, he retorted, “It’s a policy, there’s a lot more at stake here than a policy.”218 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 82. In fact, the contacts policy was designed for situations just like this where political figures might try to influence criminal investigations or legal actions taken by the Department of Justice, as President Trump attempting to do.219 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-07262021-000681 (Department of Justice policy), HCOR-Pre-CertificationEvents-07262021-000685 (White House policy).

In the days that followed, Clark called witnesses, got a briefing from ODNI and pursued his own investigations. Acting Deputy Attorney General Donoghue was “shocked” to learn that Clark did not cease his efforts even after learning there was “no foreign interference.”220 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. Instead of adhering to the facts, Clark “doubled down.” During a follow-up meeting on January 2nd, Clark acknowledged he had received the ODNI briefing, and he acknowledged that there was nothing in the briefing that would have supported his earlier suspicion about foreign involvement, but he nevertheless “spewed out some of these theories, some of which we’d heard from the President, but others which were floating around the internet and media, and just kept insisting that the Department needed to act and needed to send those letters.”221 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.