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Georgia Trump 2020 case | Prosecutors argue former Justice Department official acted outside scope of his authority

Clark didn't appear for Monday's hearing. The arguments centered around whether Clark was acting within his official duties

ATLANTA — A federal judge will soon decide if former Department of Justice official Jeffrey Clark can move his Georgia 2020 election case out of Fulton County Superior Court.

Clark, one of 19 defendants charged in last month's sprawling racketeering indictment that includes former President Donald Trump, is accused of using his position to attempt to overturn the state's election results, despite objections from higher-ranking Justice Department leaders.

Unlike former White House Chief of Staff Mark Meadows, Clark did not appear or take the stand during his hearing. 

U.S. District Judge Steve C. Jones wouldn't allow the defense to submit certain evidence into the case, including a sworn statement from Clark. The moves make it more difficult for Clark to prove he was acting under the scope of his authority as a federal official.

Jones did not make a ruling following the roughly three-and-a-half-hour hearing.

Harry MacDougald, one of Clark's attorneys, argued that Trump and other White House officials supported Clark's involvement in election matters, culminating with a meeting in the Oval Office to discuss a letter Clark drafted about alleged fraud.

Clark was offering confidential legal advice. He was acting within the scope of his duties, and the case should be moved to federal court, MacDougald said.

Prosecutors with the Fulton County District Attorney’s Office said that Clark acted outside of the bounds of his authority when he falsely claimed that the Justice Department had “identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia” in letters he wanted sent to state leaders, including Governor Brian Kemp.

Clark served as the Assistant Attorney General for the Environment and Natural Resources Division and the acting Assistant Attorney General for the Civil Division during the 2020 election — neither of which would deal with these sorts of state election matters,  prosecutors said.

Clark’s attorney: Clark was acting within the scope of federal duties

MacDougald told Jones the issue at hand during Monday’s hearing was the narrow question of jurisdiction. 

Clark completed the work using federal resources and sent the drafted letter to Acting United States Attorney General Jeffrey Rosen as well as then-acting Deputy Attorney Richard Donoghue. 

Further, MacDougald argued Trump could put election duties within Clark’s scope. Assistant attorneys general could be moved from one area to another as needed, and Trump never claimed that Clark was overstepping his bounds.

Instead, Trump invited Clark to the White House for a Jan. 3, 2021 meeting where the draft letter was discussed with other attorneys. They hashed out their differences in legal opinions during the contentious meeting.

All of this means that Clark was acting within the color of his office, and Fulton County shouldn’t be prosecuting him, MacDougald said.

Jones posed probing questions about Clark’s involvement in election affairs and the timeline offered by MacDougald during Monday's hearing. Jones asked if Clark had the authority to bypass his bosses and go directly to Trump.

“If he’s contacted by the president, yes,” MacDougald responded.

MacDougald alleged that if Trump hadn’t contacted Clark, Clark wouldn’t have been involved in the matter. 

Clark’s attorneys also rejected arguments that federal officials don’t have a role in investigating election fraud, pointing to Justice Department investigations that began before Clark got involved.

“There’s no crime,” MacDougald said of the charges prosecutors brought against Clark. “That’s the Baja 500 of being outside your lane.”

Jones could also allow additional evidence from Clark as part of the case.

Despite rejecting Clark’s sworn statement, Jones said he may consider some of the other documents Clark submitted. Jones also accepted portions of an affidavit from Edwin Meese, a former U.S. Attorney General under Ronald Regan, that argues Clark acted properly in his role.

Jones didn't allow Clark's sworn statement after prosecutors objected, expressing concern that they couldn't cross-examine the former DOJ official.

Fulton County DA’s Office: Clark has “no evidence” to support his claim

Fulton County prosecutors argued that Clark acted outside the scope of his authority and that his attorneys failed to provide any evidence to support his claim.

Prosecutors called Joseph Hunt, who served as the United States Assistant Attorney General for the Civil Division of the Department of Justice from September 2018 to July 2020. 

Hunt testified broadly about Justice Department procedures, saying the civil division wouldn’t handle the sort of fraud allegations Clark outlined in his drafted letter. 

Chief Senior District Attorney Donald Wakeford said Clark’s attorneys failed to prove that he was acting within the boundaries of his duties. They provided no proof that Trump authorized Clark’s actions, and there was nothing presented to show what federal law Clark was attempting to enforce, Wakeford said.

Further, Wakeford argued there was no indication that Clark had any basis to disagree with the findings of top Justice Department officials that there was no widespread fraud that changed the election’s outcome. 

“There is no federal authority here to protect,” Wakeford said.

What happens next?

Monday’s hearing is the first in a busy week of proceedings tied to the 2020 election case. The U.S. Court of Appeals for the Eleventh Circuit could soon rule on Meadows’ bid to move his case to federal court. Jones ruled against Meadows earlier this month, and Meadows appealed the ruling.

Three of Clark’s codefendants will also have hearings this week as they seek to move their cases to federal court.

A joint hearing for David Shafer, Georgia Sen. Shawn Still, and Cathy Latham is set for Wednesday. The three signed Electoral College documents falsely claimed Trump won the election. Latham was also allegedly involved in the Coffee County data breach.

The Fulton County jury clerk's office is also in the process of sending subpoenas to 900 prospective jurors for the trial of Kenneth Chesebro and Sidney Powell set for Oct. 23. They have been split from the remaining 17 defendants in the case. Fulton County Superior Court Judge Scott McAfee said he hopes to have a jury sworn in for the trial by Nov. 5.

Clark faces two charges in the election case — a violation of Georgia's RICO Act and one count of criminal attempt to commit false statements and writings.

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