A federal judge appeared inclined on Monday to reject the former Trump justice department official Jeffrey Clark’s effort to transfer from state to federal court his criminal case for conspiring to overturn the 2020 election in Georgia, striking his written testimony from consideration.
The way that the hearing played out for Clark could dictate how future efforts by Donald Trump or his other co-defendants to remove their cases to federal court could play out, given how Clark’s lawyer at times put blame on the former president.
The US district judge Steve Jones did not make a formal ruling from the bench at the court hearing in Atlanta but left Clark, the former assistant attorney general for the civil division, without the key evidence he had wanted to submit after he failed to appear in person.
That means the judge will make a decision on whether Clark can remove his racketeering charges, brought by the Fulton county district attorney’s office last month, based on the oral arguments by Clark’s lawyer and parts of a supporting affidavit from the former attorney general Edwin Meese.
The judge’s refusal to consider Clark’s own written testimony suggests he faces an uphill struggle, given the burden rests on Clark to prove that he was acting within the scope of his official duties as a justice department official in order to successfully change venue to federal court.
At issue for Clark is a letter he drafted in December 2020 that said the department was investigating supposed irregularities in the election in the state of Georgia – even though it had already concluded otherwise – as part of what prosecutors say was an effort to overturn Trump’s defeat.
Clark’s lawyer, Harry MacDougal, argued that Clark was acting within the scope of his official duties because Trump had asked him to look into the matter, and that Fulton county did not have jurisdiction to prosecute him for deliberative functions he undertook inside the justice department.
In particular, Clark’s lawyer pointed to an Oval Office meeting on 3 January 2021 involving Trump, Clark and other top lawyers from the department and the White House. Trump asked Clark for his opinion, which “ratified” that he was within the scope of his official duties, he argued.
Whether that line of reasoning succeeds with the judge is uncertain, especially given Clark has no evidence to support those claims after Jones declined to take Clark’s affidavit attesting to those events into consideration.
The trouble for Clark could be compounded because election-related litigation is not in the purview of the civil division, but with the civil rights division or the criminal division. Even then, the justice department has no role in election management, which is run by the states.
Even if Trump, as president, had instructed Clark to use the force of the justice department to investigate election fraud claims, the fact that he was heading the civil division meant he would have been acting outside his lane, Fulton county prosecutors argued.
The Fulton county prosecutors also had Clark’s predecessor as the head of the civil division, Jody Hunt, confirm on the stand that the only time that the civil division does litigation is to either protect government officials from lawsuits or protecting the interests of the United States.
The judge did not articulate precisely why he would not accept Clark’s affidavit, but a declaration alone with no appearance on the stand is widely regarded as insufficient to meet evidentiary burdens because Clark would not be subject to cross-examination.
The Guardian has previously reported that Trump was weighing whether to file for removal based on how his former White House chief of staff Mark Meadows and others fared in their efforts before finalizing his own. Meadows is appealing after he had his motion rejected last week.
Trump can wait until 30 days after his arraignment – or in this case, his arraignment waiver and not-guilty plea filed on 31 August – to decide whether to seek removal.
Trump’s lawyer Steve Sadow watched the oral arguments from the gallery, as did lawyers for some of the so-called fake electors who are scheduled to have their evidentiary hearings to transfer to federal court take place on Wednesday.
