Jeffrey Clark, an attorney who served at high levels of the Department of Justice under former President Donald Trump, is undergoing both prosecution and bar disciplinary proceedings for his slight involvement with the 2020 election challenges. The District of Columbia Bar, its disciplinary panel, and the federal trial court judge refused to let Clark remove the disciplinary proceedings to federal court, despite the fact there is a federal law providing for removal when the actions in question involve a federal official, so Clark filed an appeal with the D.C. Court of Appeals on Thursday.
Clark is being disciplined and prosecuted for drafting a letter to Georgia election officials after the 2020 election advising them of options the Georgia Legislature could take to address the concerns about election illegalities. The letter was never sent or even circulated.
Clark’s opening brief for his appeal laid out how in 2011, Congress amended the federal removal statute, 28 U.S.C. 1442(d)(1), to clarify that “any proceeding” against a federal official can be removed to federal court. The statute says both civil and criminal proceedings are removable. There are only four exceptions to that, listed in 28 U.S.C. 1445, and none of them are bar disciplinary proceedings.
However, the trial court judge dismissed Kolibash v. Comm. on Legal Ethics of W. Va. Bar, a 1989 similar case that held that a former U.S. Attorney could remove a West Virginia bar disciplinary case to federal court. If the lower court’s decision is allowed to stand, it would create a split among circuit courts, since Kolibash was decided by the Fourth Circuit Court of Appeals. The D.C. Court of Appeals has previously stated that bar disciplinary proceedings are “quasi-criminal” — so it would be a departure from its own prior ruling were it to side with the lower court.
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