Jeffrey Clark Will Plead the Fifth. What That Means and Doesn’t Mean for the Jan 6 Investigation.

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After the January 6 Committee unanimously recommended criminal contempt charges against former Justice Department official Jeffrey Clark for outright refusing to answer their questions in response to a subpoena, Clark changed his tune slightly and agreed to appear before the Committee on Saturday in order to formally assert his Fifth Amendment privilege. In his first appearance before the Committee, Clark had made blanket assertions of “executive privilege” and cited Trump’s legal challenge to the Committee’s subpoenas as a basis for refusing to respond at all. He walked out of the deposition after 90 minutes, prompting the Committee members to ratchet up the pressure and vote to refer him to Congress for a criminal contempt vote. That was the same path former Trump advisor Steve Bannon faced not long ago, which ultimately resulted in an indictment against Bannon and his arrest.

Clark is still expected to refuse to answer any of the questions posed by the Committee on Saturday on grounds he has a constitutional right against self-incrimination. But he’s expected to do so on a question-by-question basis to make a clear record of his pleading. But what does this mean, both in theory and in practice? Is there a way “around” this assertion, and what likely happens next? First, a quick backgrounder on why Jeffrey Clark matters to the investigation.

Clark is at the center of a conspiracy to overturn the election.

Back in January of this year, the New York Times broke a story of a “soft coup” attempt that had been brewing inside the White House. It was led in part by Clark, who worked as an environmental lawyer and only recently had been named acting head of the Civil Division of the Department. Clark had been a proponent of holding press conferences that would have put the imprimatur of the Justice Department behind unfounded allegations of election fraud. Clark was also the author of a draft letter to the Georgia state legislature that would have wrongly claimed that the Department was investigating electoral fraud and would have urged Georgia lawmakers to act to void Biden’s victory in that state. Perhaps most ominously, Trump was considering firing Acting Attorney General Jeffrey Rosen, who had rebuffed Trump’s requests to involve the Department in the electoral fraud claims, and replacing him with Clark, whom Trump saw as a loyal foot soldier.

Within days of the Times report, the Department of Justice Office of the Inspector General announced an investigation into “whether any former or current DoJ official engaged in any improper attempt to have DoJ seek to alter the outcome of the 2020 Presidential Election.” That investigation is both confidential and ongoing, more than 10 months running now. The January 6 Committee’s investigation is somewhat wider. It recently made clear in its criminal contempt referral report what information it is seeking from Clark, including facts around his meetings with Trump to “discuss efforts to delegitimize, disrupt or overturn the election results” as well as this fairly explosive claim:

“The Select Committee believes that Mr. Clark had conversations with others in the Federal Government, including Members of Congress, regarding efforts to delegitimize, disrupt, or overturn the election results in the weeks leading up to January 6th.” (Emphases added.)

With an ongoing internal OIG investigation that could lead to criminal charges and with Clark sitting on the possible goods concerning co-conspirator members of Congress, it’s small wonder that Clark doesn’t want to answer any questions whatsoever.

What Clark’s Taking the Fifth Means and Doesn’t Mean

Generally speaking, a witness may invoke the Fifth Amendment privilege during a congressional investigation over testimony or documents that are: (1) testimonial (in other words, things that relate to a factual assertion, and not mere opinion); (2) self-incriminating (meaning any disclosure that might tend to show guilt or even furnish a “link in the chain of evidence” needed to prosecute); and (3) compelled (i.e. not voluntarily given). Clark intends to refuse, question by question, to answer anything before the Committee by invoking this privilege.

In a congressional hearing setting, it’s best to consider two aspects of the right to remain silent: the legal and the political. Legally speaking, Clark is fully within his rights to not provide self-incriminating testimony and to refuse to answer questions. If the fact of his Fifth Amendment invocation is ever brought up in a court case, a judge would instruct the jury to draw no adverse inferences from his refusal to testify. 

This makes sense. Many innocent people know better than to roll the dice by appearing on the witness stand, where crafty lawyers can make them appear guilty to others or catch them in commonplace inconsistencies that a jury might be manipulated to conclude are evidence of a guilty mind. Clark’s lawyers are no doubt reminding him that he faces a slew of possible charges, from election interference to fraud, or even conspiracy against the United States, which can carry a 10-year sentence. The advantage for Clark to come in again before the Committee and assert the Fifth line by line is that he likely won’t be charged with contempt of Congress after that, even though he walked out of his first deposition, because the Justice Department simply wouldn’t be very interested in pressing a moot case.

That said, there is no denying that the public perception of the case—the political aspect of it—will be shaped by Clark’s taking the Fifth. If Trump did nothing wrong, then why is one of his key allies and alleged co-conspirators worried about self-incrimination? Trump himself is famous for saying that only guilty people and mobsters plead the Fifth. After Clark, it is no longer easy for January 6 apologists to claim that there was no burning fire in the White House; now there is an alleged fellow arsonist who is refusing to talk to investigators.

Can the Committee Get Around Clark’s Fifth Amendment Right?

There are a few ways the Committee could still pressure Clark to testify despite his taking of the Fifth. It could dispute his assertion over certain documents, for example, for which the mere act of producing them is not self-incriminating. This is a muddy area of the law, however, and would likely tie up the case in the courts too long for the Committee’s liking.

Another route would be to try and assert that Clark somehow waived his Fifth Amendment rights, but there isn’t really any evidence so far to back this up unless they can make a legal case that his failure to assert it in his first depositing was a waiver. (A different case may lie with former Chief of Staff Mark Meadows, who has published a book about his time in the White House and can't readily hide behind what he has already made public.)

If the Committee wanted to, it could also vote to seek an order from a judge granting Clark immunity in exchange for his testimony. That would mean anything he said in deposition couldn’t be used against him later in any respect in any subsequent criminal proceeding. Given that there is an ongoing internal investigation that might result in charges against Clark, and that prosecutors might someday want to strike a deal with him in exchange for testimony against, say, the former president, this seems an unlikely move by the Committee at this time as well. 

So does this mean the Committee is knee-capped?

Whether Clark testifies in person and produces documents may not be as important as many assume. Even while high profile subpoena nose-thumbers like Steve Bannon, Mark Meadows and Jeffrey Clark make headlines with their stonewalling, the Committee has been quite busy behind the scenes, interviewing over 250 witnesses who have been willing to cooperate. Those witnesses no doubt have many of the same documents, emails, and notes of meetings that Clark or other high level witnesses possess, and therefore that evidence can be authenticated independently from them. For example, Clark was in the same meetings with Trump as Jeffrey Rosen and Deputy Attorney General Richard Donaghue, whose contemporaneous notes (“just say the election was corrupt and leave the rest to me”) have already proven vital in elucidating Trump’s state of mind. In other words, what Clark did and said can be established without Clark’s testimony, and his silence won’t necessarily protect him.

Indeed, it is entirely possible that we see zero cooperation from those who wind up being at the center of the conspiracy—including certain Congressmembers whom Clark apparently communicated with about disrupting the election—but the Committee’s report nevertheless successfully relies on other direct evidence of their involvement, including phone records, texts, emails, and other witness testimony. After all, most criminals are convicted for their crimes without ever taking the stand in their own defense based on evidence collected from investigators and third party witnesses. At the end of the day, if there is a mountain of evidence on one side and nothing but silence from the defense, that can easily lead to a finding of guilt.

So What Happens Next?

There are many moving parts here, but it seems clear that those most likely to be charged criminally are going to remain quiet and uncooperative until it becomes clearer what the evidence shows. So far, all but the first day of hearings were held behind closed doors, and while this is certainly frustrating for the public, it serves one good purpose: It has been impossible for witnesses to align and confirm their stories in advance without risking a charge of tampering with the process. 

The Committee will continue to gather evidence and call witnesses for a few months, but it should not come as a surprise if the next logical step is to begin to make a public case about what happened leading up to and on January 6 by inviting some key cooperating witnesses to come forward in a public forum. Around this time, lawyers for those who might be part of the conspiracy could begin to advise their clients to cut deals early.

And as for Jeffrey Clark? He is likely going through a lot of things right now.