- The Jan. 6 select committee voted to make a criminal contempt referral for ex-Trump DOJ official Jeffrey Clark.
- Clark facilitated Trump's election subversion plot and refused to cooperate with the Jan. 6 committee.
- The DOJ previously indicted Steve Bannon on contempt charges after Congress referred him.
The House select committee investigating the deadly Capitol riot voted late Wednesday to recommend criminal charges against a former top Justice Department official who refused to cooperate with the panel's investigation.
Jeffrey Clark joined the Justice Department's environmental protection division in 2018 and was acting assistant attorney general for the civil division until his departure earlier this year. He was also a key facilitator of then-President Donald Trump's efforts to subvert the 2020 election results, making him a critical witness for the select committee investigating the insurrection.
A lawyer for Clark informed the committee that the former DOJ official intends to plead the Fifth Amendment, which protects a witness from self-incrimination. Panel chair Rep. Bennie Thompson said another deposition would be convened this weekend to allow Clark the opportunity to do so.
"However, we will proceed tonight with considering the contempt report, as this is just the first step of the contempt process," Thompson said.
Rep. Liz Cheney, the top Repulican on the committee, said the contempt process would not be finalized as long as Clark "genuinely cures his failure" to comply with the panel's subpoena on Saturday.
Clark is the second person the select committee voted to recommend criminal charges against in connection with the January 6 investigation. Last month, it voted to make a contempt referral for Trump's former chief White House strategist Steve Bannon, who also refused to cooperate with the inquiry while citing Trump's executive privilege assertion.
The full House of Representatives subsequently voted to advance the referral, and the Justice Department indicted Bannon on two misdemeanor counts of contempt of Congress last month. He pleaded not guilty. Prosecutors also accused Bannon earlier this week of trying to get media attention off of his case and asked a judge to restrict what evidence Bannon can release to the public.
The January 6 select committee subpoenaed Clark for documents and testimony in October. He appeared before the committee early last month but gave lawmakers a letter from his attorney, Harry MacDonald, saying he would not answer any substantive questions, citing attorney-client privilege and Trump's executive privilege claims with respect to the investigation.
MacDonald's letter also distanced Clark from the events of January 6, saying that he "informed me he worked from home that day to avoid wrestling with potential street closures to get to and from his office at Main Justice."
"Nor did Mr. Clark have any responsibilities to oversee security at the Capitol or have the ability to deploy any Department of Justice personnel or resources there," it said.
Lawmakers on the bipartisan select committee investigating the insurrection have made clear that they expect the Justice Department to enforce witness' compliance with subpoenas for records and testimony. But as Insider's C. Ryan Barber reported, Attorney General Merrick Garland could be faced with a much more difficult decision in Clark's case as opposed to Bannon's, which legal experts described as a slam-dunk for prosecutors.
For one, Clark has a stronger argument as it relates to Trump's executive-privilege claims because both men were serving in the federal government at the time, unlike Bannon, who was ousted from the Trump White House in 2017. Clark is also a lawyer, which raises additional questions about attorney-client privilege concerning his conversations with Trump.
The former president, for his part, doesn't appear likely to back off of his opposition to the committee's investigation. He asserted executive privilege over a trove of documents the committee requested from the White House, but the Biden administration declined to do the same and authorized the National Archives to turn the materials over to Congress.
Trump filed a lawsuit to try to block Biden, and on Tuesday, his lawyers argued before a three-judge appeals court panel that, as the former president, he has the right to dictate which documents from his tenure Congress gets.
But the panel appears unlikely to buy that argument.
"We have one president at a time under our Constitution," Judge Patricia Millett said during oral arguments. "That incumbent president … has made the judgment and is best positioned, as the Supreme Court has told us, to make that call as to the interests of the executive branch."