The disbarment trial of Donald Trump’s former DOJ official Jeffrey Clark began last week, featuring testimony from several prominent statisticians. Clark, who is also a defendant in Fulton County District Attorney Fani Willis’s RICO prosecution, is being disciplined for drafting a letter that was never sent to Georgia officials after the 2020 election advising them of their options for dealing with the election illegalities. The trial is expected to last two weeks, into this coming week.
On Thursday, Hamilton Fox, the D.C. Bar’s attorney who has aggressively gone after other Trump attorneys, attempted to keep most of Clark’s witnesses from testifying. He described them as “sketchy witnesses” who want to talk about “supposed irregularities.” However, one of the witnesses who ultimately testified on Thursday had been allowed to testify in the similar disbarment trial of Trump’s former attorney and constitutional legal scholar John Eastman last year.
Fox objected to E. Donald Elliott, a Yale Law Professor, from testifying because he said Elliott was going to testify about how he thought Clark did not violate ethics rules, claiming it wasn’t relevant.
Merrill Hirsh, chair of the disciplinary panel hearing the case – which also features a lawyer member and a member of the public – expressed his skepticism that there was a reason to want to look into election irregularities in Georgia’s 2020 election. Clark’s attorney Harry MacDougald responded and said much of Clark’s justification was based on the Ligon Report, which cited chain of custody of ballot issues, absentee ballot problems, and more. The Ligon Report was a transcript from a Georgia Senate hearing held on December 3, 2020, named after Judiciary Committee Chairman William Ligon.
After Fox was unsuccessful at keeping Elliott off the stand, he tried to show he wasn’t qualified to talk because Elliott’s pleading in the case did not discuss Rule 8.4(c) of the Rules of Professional Conduct (most states as well as the D.C. Bar have adopted mostly similar ethics rules). Clark was charged with multiple violations, but Elliott’s brief he submitted in the proceeding focused heavily on the other rules instead.
After Elliott was allowed to refresh his memory and re-read his pleading, he was able to show that he did discuss that rule, just not by name. That rule is a catchall broad, vague rule frequently used to disbar conservative attorneys, prohibiting “conduct involving dishonesty, fraud, deceit, or misrepresentation.”
Elliott said he didn’t even agree with Clark on sending the memo, but said he was testifying at his trial without compensation because he felt so strongly about “keeping the exchange of ideas within government free.” Elliott, who lost count of how many law reviews he’d authored after it totaled 70, discussed how sometimes ideas that seem sort of “out there” at first become more normal and accepted.
He said he thinks it would be really unfortunate if the ethics standard of dishonesty includes debates on issues within the government. He said the rules allow attorneys to bring up alternative positions as long as there is support for them, which he believed there was. Elliott cited as sufficient support two sources in Clark’s draft letter; the Ligon Report and an article about a Georgia State Senate report which recommended rescinding the election results for being “untrustworthy.” That article was published in The Tennessee Star, one of the Star News Network’s sites. He said the fact that two other DOJ officials disagreed with Clark, and there was evidence to the contrary, did not diminish this.
When questioned about negative statements that Attorney General Bill Barr made about whether there was election fraud in 2020, Elliott said Barr’s public remarks actually exonerated Clark. Unfortunately, he said, the mainstream media cherry picked them to make them appear to say the opposite. Elliot noted Barr said that additional investigation might find criminal behavior, it just couldn’t be done by the DOJ.
He went on to say that despite the fact there’s contrary evidence to a position, doesn’t make it frivolous. He said the ethics rules state that in the comments. Even when “the coup” happened in the DOJ — leadership refusing to take direction from Trump — that wasn’t grounds for discipline, he said.
Elliott said Clark’s position was constitutionally defensible. “Throwing a disputed election into the House of Representatives is part of our Constitution … there could have been fraud.” At the same time, he acknowledged that he wrote an article on why “Biden won square and fair.”
The standard for the court is whether there was a “reasonable investigation,” Elliott explained. He said it’s not “frivolous” just because “an argument doesn’t prevail.”
When asked about Clark “threatening” to have the acting Attorney General Jeffrey Rosen replaced if he didn’t send the letter, Elliot said it was not an ethics violation. “Lawyers argue like that all the time.” He would have merely advised against it.
Fox objected to Clark’s next witness, academic John R. Lott of the Crime Research Center, complaining that he didn’t receive proper disclosure about his testimony in advance as required by Rule 26 of the Rules of Civil Procedure. MacDougald retorted that the average expert disclosure report doesn’t provide as much information as the report from Lott that they turned over does.
Fox tried to get Lott to admit that he had only published articles about voter fraud since 2020, but Lott said he wrote about it in 1999 and then in 2000 regarding that election. He said he also submitted another article to a journal several years ago about voter fraud, but Democrats threatened the journal that they would bash its reputation if they published it, so it never got published.
Much of Lott’s testimony focused on his article, “Simple tests for the extent of vote fraud with absentee and provisional ballots in the 2020 US presidential election.” In it, he discussed comparing Fulton County with four counties nearby that had no allegations of absentee ballot fraud. He compared the voting behavior in precincts that were adjacent to each other on county borders. (In-person voting is counted at precinct level, absentee ballots are counted at county level, he noted) He compared 2016 to 2020. He couldn’t explain the difference between the far higher votes for the Democrat, Biden, versus Trump, he said, even when accounting for slightly different demographics.
Another test looked at voter turnout in counties with accusations of fraud versus others. Fulton County had an unexplainable increase in votes for Biden even while accounting for other factors. He said a push to turn out the vote efforts wouldn’t explain it if precincts right next to each other across county lines have widely varying results.
Hamilton frequently tried to cut off Lott from answering fully, demanding very short answers that didn’t explain necessary missing context. Lott pushed back. Hamilton tried to prevent him from discussing how there were counties that went heavily for Biden but did not have fraud accusations. Lott said his report was turned over to the acting attorney general at the time.
Rebecca Smith, the lawyer on the panel, asked Lott why he concluded that his research into Georgia voter fraud found “nefarious” results. He said it was the discrepancy in the numbers.
Next, Fox tried to stop Clark’s witness Dr. Stanley Young, a statistician who testified in Eastman’s disbarment trial, from testifying. He claimed he hadn’t received enough Rule 26 disclosure about Young, but MacDougald listed off the disclosure he’d turned over since December. Hirsh ultimately sided with MacDougald but would only designate him an expert on statistics, not on how they related to voter fraud, which is what the judge in Eastman’s case did.
Young began testifying about an investigation he conducted with Dr. Eric Quinlan on absentee ballots in Fulton County, comparing votes for Trump versus Biden. He said part of the data followed a normal distribution, and others didn’t. The data going in should be the same going out, he said Two distributions are “vastly different from each other,” he said, “dramatically different.” He said if he had been there, “We would have closed down the production and did a search for the error in the process.”
Young said he got involved when he submitted a declaration in a court case in response to experts on the other side regarding absentee ballot statistical discrepancies in Fulton County, He said after reading all the opposing experts’ papers in the case, it only significantly strengthened his position.
He expressed alarm that the total counts of absentee ballots for Trump and Biden were announced on different days, with Trump’s announced on November 4, 2020, and Biden’s a full day later on November 5, 2020.
Next, Andrew Kloster, general counsel for Representative Matt Gaetz (R-FL-01) who served at high levels in the Trump administration during the 2020 election, testified. He discussed handling an incident that was reported to him. There was an arrest in Michigan of a Detroit woman idling outside of a drop box with a lot of ballots. Later, when authorities tried to arrest her, Detroit refused to extradite her. Kloster said she was connected to a political party. He said a police officer thought there was political pressure to cover it up, and it sounded like they wanted to blow it off as she was just turning in voter registration applications. The officer wanted to talk to the DOJ about it, but the DOJ blew it off.
Gaetz testified next, about how the Supervisor of Elections in Leon County was concerned that fraudulent ballot requests were being submitted from the Andrew Gillum effort. In response, Gaetz asked the U.S. Attorney what was being done about it. The U.S. Attorney said Barr was standing in the way of allocating resources to be proactive. Gaetz said he often complained on the floor of the House about Barr’s statements dismissing fraud. He told Trump his concerns about Barr before the election. He said he wanted Trump to “kick Barr in the a**.” He said Barr would only allow “factual investigations,” no civil or criminal investigations into the fraud.
The trial resumes Monday at 9:30 a.m. EST on the D.C. Board on Professional Responsibility’s YouTube page.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
Photo “Jeffery Clark” by Jeffery Clark.
