Count on Jeffrey Clark, the Trump-era Assistant Attorney General for the Environment and Natural Resources Division who wanted to be Attorney General, to file the strangest motion so far of any of Trump’s co-defendants in Georgia.
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[Clark, an environmental lawyer] was the guy who, as the acting Attorney General for the Civil Division in the waning days of the Trump administration, was willing to cooperate with Trump and use DOJ’s gravitas to claim there were legitimate investigations into voter fraud. He was so poorly thought of by other political appointees at DOJ that when he came forward with his ideas and asked acting Attorney General Jeff Rosen to sign on, [he] was told they’d call him when there was an oil spill, the implication being that, until then, he should stay out of matters that were over his head.
Joyce Vance
I can only wonder what kind of environmental lawyer he was. One that was
against the environment?
Trump actively considered making Clark the Attorney General after he lost the election. He was only dissuaded because, in a meeting, it became clear that the leadership at the Justice Department was willing to resign en masse if he did so.
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On Monday, Clark filed a notice of removal, an effort to get his case into federal court. At the same time, he filed something called “Defendant Jeffrey B. Clark’s Emergency Motion to Confirm Applicability of the Automatic Stay Under 28 U.S.C. 1446(D) or the Triggering of the Stay in 28 USC 1455(B)(5) or Both — Or in the Alternative For an Administrative Stay.” What this comes down to is an effort by Clark to avoid having to turn himself in by Fani Willis’s Friday deadline for defendants to present themselves for processing or be arrested.
Clark should have paid attention to Fani Willis’s response to Mark Meadows. The final White House chief of staff under Trump asked the Fulton County district attorney for extra time before showing up to be processed at the jail.
She told him she was giving out zero extensions; that the 2 weeks she gave everyone to surrender was "a tremendous courtesy"; and that they were all no different than "any other criminial defendant in this jurisdiction."
The federal judge to whom all three of the removal petitions are assigned, Steve Jones, seems to be on track for a summary disposition, rejecting Clark’s request. The Judge gave Fani Willis until 3 p.m. Wednesday to respond and will not permit Clark to file a reply to her argument.
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The law supports the Judge in that regard, by the way, requiring a “notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice.” In other words, once Clark files his Notice, that’s it. The Judge isn’t even required to consider the motion that accompanies it, although he likely will. [...] This is something of a technical legal point, but it shows just how far afield from the dictates of the law Clark’s legal pleadings to date have taken him. If he thought these arguments were a good idea in his criminal case, then we may well be getting an understanding of the extraordinary lapse of legal judgment that led him to where he is today.
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Clark’s motion asks the Judge to prevent any proceedings, including the execution of an arrest warrant, until the Court decides whether or not the case should be removed to federal court. Unfortunately for him, that’s not how the statute that authorizes removal motions works. 28 U.S.C. 1455 explicitly says that, “The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further.” [...] The state court is required to hold up only if the federal judge advises it that he is moving the case to federal court.
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Clark makes a ridiculous argument. Instead of trying to remove just the indictment, he says there are actually two legal actions to remove. He wants to send the indictment to federal court. But he claims there is also a civil case, the work done by the special-purpose grand jury that did the investigation. This argument is laughably wrong. A grand jury proceeding is criminal, not civil in nature, operating under criminal rules of procedure and adjudicating criminal matters. Nor is there any grand jury matter left to remove. The special grand jury’s work is complete, and they played no role in indicting the case. That decision was left up to a separate grand jury. That’s how Georgia law works, whether Clark likes it or not.
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Clark argues his case should be removed and that he is immune from prosecution under the Supremacy Clause of the Constitution, in additional to having other federal immunity, because state courts lack jurisdiction over federal officers. His lawyer argues that “the immunity bars even Mr. Clark’s arrest for the charges against him in the indictment.” Sadly for Mr. Clark, this too is untrue.
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Clark is also affronted by the news that Fani Willis has obtained a warrant for his arrest that she will execute if he doesn’t turn himself in in a timely fashion. He complains that he “only learned about the arrest warrants based on press accounts.” Surely he is more fortunate than defendants who are arrested without any notice, an experience he had a taste of when an early-morning search warrant on his residence left him standing in front of his house in a pair of shorts.
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Clark also claims the Fulton County Sheriff runs one of the worst jails in the country.
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So Clark wants a stay, a remedy available in a civil case but not a criminal one, to keep himself from being arrested.
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Clark’s argument is that he doesn’t like the law, and he doesn’t want it to apply to him.
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Clark also has the temerity to set out a schedule for the Judge to follow, an unusual show of arrogance for any litigant, let alone a criminal defendant. Clark would give the Judge until August 31 to decide the matter, reinserting an order that he can reply to the government’s motion, which is most decidedly not what the Judge seems to have in mind.
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[Clark] has hired a lawyer whose bio suggests that he has [no criminal law experience]. Clark might have done well to heed the advice that Trump White House Counsel’s Office lawyer Eric Herschmann gave Clark’s co-defendant John Eastman: “Get a great effing criminal defense lawyer.”
MAGA: Make attorneys get attorneys.
Not content to give the judge a week to make a final decision, Clark tried to impose a deadline of 5 p.m. on Tuesday, the 22nd, now yesterday, to enter an order staying any arrest while the court was considering Clark’s arguments. That obviously failed. Clark objected to being forced to make “rushed travel arrangements” to fly to Atlanta or risk being labeled a fugitive.
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The former Assistant Attorney General doesn’t seem to understand how any of this works, despite thinking he was qualified to run the Justice Department. Fortunately for him, there are plenty of flights that can still get him from Washington, D.C., to Atlanta on time. And if he can’t manage it on his own, law enforcement will be happy to help him get there.
UPDATE 08:08 pm:
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