In many ways, Clark's fate may boil down to whether a top presidential advisor, according to Clark's Attorney Harry MacDougald, "could be disciplined for taking a position in an internal document that never leaves the office. And that you could get punished for dishonesty or attempted dishonesty for bringing up an idea for internal debate." MacDougald is referring to Clark's internal draft letter, a letter that was never sent.
The letter addressed top election officials in Georgia concerning election irregularities worthy of examination resulting from the November 2020 election. The Disciplinary Counsel for the D.C. Bar, Hamilton Fox, argued that Clark was not in a position to send the letter. However, Attorney General Edwin Meese testified on Tuesday that the President can seek and receive information from people of his choosing in the DOJ, even the Acting Attorney General, even if he or she is not yet confirmed.
According to Fox, Clark's willingness to pen a draft letter that aligned with President Trump's position on the 2020 election and his willingness to intentionally ignore top DOJ officials Donoghue and Rosen would have resulted in "a disaster and riots in the streets." The DOJ claimed there was no evidence of fraud in Georgia that would change the results of the 2020 Presidential election. Nevertheless, Fox argued that Clark "was willing to do the President's bidding and say the election was corrupt" without examining the facts.
Fox's statement belies just how politicized this case is. In reality, as Meese testified, the President is in charge of the DOJ and his advisors opine and respond to requests on consequential matters regularly. In a fair world, Clark would not be under scrutiny because he was doing his job. Given the political environment, it is also not out of the realm of possibility that the D.C. Bar is bringing this unprecedented case because it wants to take attorneys like Clark and Eastman out of play in anticipation of the 2024 election.
A few key holes can be punched into Fox's closing arguments. Number one, the discussion between Clark and the DOJ was all internal. Are we now saying officials in the Office of the Executive cannot exercise their right to weigh in on matters of consequence? Number two, the DOJ had been looking at fraud that would change the outcome of the election and civil rights violations. Clark, however, was looking at irregularities. Is it not prudent to also look at those when it is an election we are talking about here? Number three, the DOJ completely dismissed Clark's concerns about irregularities as a reason to question the election while simultaneously claiming Clark's wish to investigate was baseless, invalid and "intentionally dishonest," apparently because the DOJ was focused on fraud, not irregularities. And let's just assume Clark and others were not lying when they claimed Clark had good reason to think there might have been irregularities. Are his opinions baseless just because he disagreed with what the DOJ concluded or chose to investigate? MacDougald posited both the DOJ and Clark had equally valid concerns. In fact, evidence emerged during the hearing to support the fact that Clark was by no means stabbing in the dark with his wish to investigate. He had been speaking with witnesses in Georgia and he had also closely considered the investigation and report published by Georgia Senator William Ligon on Dec. 17, 2020.
The Ligon report parallels much of the evidence and testimony that soon emerged after the 2020 election from concerned citizens like Garland Favorito of VoterGA and others. The report also tracks much of the testimony heard this week from witnesses brought by the defense. "The Ligon document alone," said MacDougal, "was sufficient basis to raise the issue internally."
Even Chairman Merril Hirsh challenged Fox's supposition that Clark didn't heed the DOJ's advice or conclusions. However, MacDougald highlighted that Clark and the DOJ were focused on two different ways of looking at the election. In addition, both MacDougald and Hirsh mentioned that Fox was worried about something that would probably never happen anyway. Former Deputy Attorney General Rosen ultimately stopped the letter from going out and Clark likely knew he would not have the final say as to whether the letter would be sent out.
MacDougald stated several times that a case like Clark's is "absolutely unique in the sense that there has never been a similar disciplinary case that we can find over a confidential internal draft of the document that was not approved, not sent and never left the office." Clark is, in essence, being disciplined for a "pure thought crime," a position that has the potential to influence other lawyers willingness to give their professional opinions in consequential situations that should allow for healthy debate. MacDougald speculated that "lawyers all over the country" will be afraid to raise issues or engage in internal, confidential debate if they believe they will be disciplined for having or offering their opinion.
If elections are as pristine as CISA or our DOJ would have us believe, then it is news to me. After hearing days of expert testimony from various witnesses, there seems to be ample evidence to support Clark's wish to scrutinize and investigate fraud or unlawful conduct in our elections. Yet, despite all previous and current findings, Attorney Jeffrey Clark faces a disciplinary hearing in D.C. this week because he sided with Trump on the 2020 election and bucked authority at the DOJ.
Listening to cybersecurity expert Shawn Smith, we could wonder why there is so much scorn and stubborn resistance to abandoning voting machines in U.S. elections. As familiar as I am with the vulnerability of elections run with electronic voting systems, Smith's testimony was mind-bending. Now, let's say election officials could theoretically set aside the sunk cost and the politics surrounding the use of electronic voting systems. An open mind, free of political bias or intent, would almost certainly see from Smith's testimony that the risks of continued use of voting machines far outweigh the benefits. You don't even have to be smart to understand it. In fact, you don't even need to focus on machines or fraud. You just need some modicum of common sense.
Then let's say you don't believe Smith's testimony and the belief that "black box machines" procured "from overseas unsecured supply chains, manipulable and accessible by foreign powers," as Smith testified. Well, there are still countless ways the elections in 2020 and 2022 were unlawful, not just in Georgia but in every state investigated. No signature verification in Fulton County, GA in 2020? Check! Significant chain of custody issues? Check! Thousands of duplicate ballots found? Check! The voter registration rolls that are "based on a database that isn't being secured and is provably inaccurate," Check! Thousands of missing or deleted ballot images? Check! Instances of misconduct that were never properly investigated or prosecuted? Check! Certification of elections that "didn't meet certification boundaries?" CHECK! All this and more was presented in testimony this week.
Testimony heard in this disciplinary trial alone seems abundantly evident that Clark had every reason to test and investigate Trump's hypothesis on the 2020 election. Clark saw much of it in the Ligon Report in December 2020. The testimony, combined with what has already come out from myriad sources, makes it pretty plausible the three-person committee should give Clark the benefit of the doubt. It seems that nothing Clark did responsive to Trump's hypothesis or wishes warrants an ethics review. One does not need to do much more than listen to some of the highlights of this week's testimony to grasp why Clark would feel compelled to argue and act upon a suspicion that the 2020 election warranted a closer look. This is arguably the first time this kind of testimony has been so prominently aired in places like the District of Columbia.
Unsecured Networks and Cyber Security in Elections
Shawn Smith: Voting Machines
Col. Smith is a subject matter expert on the security of computer-based election systems. He spent a good part of his time performing "operational testing to complex, computer-based weapons systems." At the Pentagon, he oversaw the operational testing of all space systems for the Defense Department, with the exception of satellite communications. He also assessed adversarial threats for the office of the Secretary of Defense. Smith is well-acquainted with some of our country's most highly secure systems.During the trial, using the Solar Winds breach as an example, Smith explained why election systems can never be entirely secure. According to Smith, we can't even secure our most secure government networks, let alone those used in elections.
Solar Winds, said Smith, represented "two different compromises to highly secured computer networks." One was Sunspot, and the other was Supernova Sunspot. According to Smith, Supernova Sunspot was "one of the most devastating supply chain compromises in history, not just in the U.S." because it "compromised server infrastructure in almost every major federal organization, agency, department, and branch in the United States, and then many state and local governments." Importantly, the breach involved "the Department of Justice, Department of Homeland Security, Department of the Treasury, Agriculture, Interior. Defense, including within the Department of Homeland Security, the server infrastructure of CISA, Cybersecurity and Infrastructure Security Agency," the last which is the "very agency responsible for securing election infrastructure."
Smith continued, "So all the measures they had, including intrusion detection and prevention systems, active monitoring, trained skilled cyber personnel, all their defensive measures were for nothing. They never detected their own compromise up their own servers, even while they were making public statements about the security of election infrastructure." According to Smith, the only reason the government realized there was a Solar Winds breach is because Mandiant Fireye teams detected the breach on their own architecture. Mandiant then informed the federal government of the compromise. In sophisticated breaches like Solar Winds, Smith said interlopers employ "erasing capabilities and tactics" once they notice they are being rooted out. At that point, not much can be done to address the breach, even for high-level cyber security experts.
Enter election systems that are not actively defended and managed by public servants with neither the expertise to recognize threats nor the experience or the authority to fix the breach. Smith's point was that even our most sophisticated national security systems are vulnerable on an ongoing basis, even on a good day. And yet we install election systems that are not updated properly, are out of compliance with the laws, are not tested in ways that reflect real-world situations and are handled by amateurs who may be well-meaning but are, in truth, wholly unprepared for incursions. Even if there were no compromises to the system, our elections are still certified "out of compliance with the law because, [in part], they are insufficient under cyber security standards."
In addition, Smith explained why a supply chain with its origins in China has irreparably corrupted our voting systems in many instances. He said public officials have zero "capability to know if those systems have an embedded wireless transmitter or if they have been compromised. For example, the Dell motherboards have Thunderbolt Force. [But] they could have a Thunderbolt Thunderspy exploit that permanently alters the security of that motherboard and makes them forever accessible to bad actors. And the voting and election officials would have no idea. They have no capability or knowledge necessary. And even if they did, mostly they don't have the authority or access to be able to look at the systems to find those kinds of compromises and vulnerabilities. We've done them a tremendous disadvantage, but really, the harm is done to the American public because we're telling them to trust these systems. And they're not trustworthy. It's shocking to me that we would employ systems this insecure and then lie to the public about it." Smith also said the Federal Government is well aware of the security issues rampant in our electronic voting systems.
Additionally, Smith discussed at length the issue of the day: the removal of QR codes from ballots stipulated in one of the bills passed last week in Georgia, as reported by UncoverDC. The removal of QR codes is a superficial fix that fails to fully address the threat of having non-transparent information on a ballot that allows voters to trust that the vote they cast is the vote that was ultimately counted. Transparency of a voter's intention is HAVA-regulated. QR codes "violate HAVA because they are not human readable," said Clay Parikh in an exchange with UncoverDC.
Unlawfully Conducted Elections
Harry Haury
Other testimony spoke more directly to the unlawful and unprosecuted crimes associated with elections to this day. Operations security expert Harry Haury (who drafted parts of HAVA) testified that the 2020 election was "neither safe nor secure" for myriad reasons. As one example, he testified that there were "160,000 votes in Georgia" whose signatures were never verified, which "by definition means [the state] didn't comply." He continued, "If you can't tell me who won, you can't tell me certification was proper."Haury also mentioned the incident whereby AG Barr shut down a federal investigation of the alleged movement of mail-in ballots from New York to Pennsylvania. A truck driver and USPS, Jesse Morgan, claimed in an affidavit that he hauled "24 Gaylords" of "bundled" and completed ballots out of state, a possible RICO case. Col. Shaffer was investigating the case, but Haury overheard a phone call between Shaffer and Barr loudly asking him to shut his investigation down. Haury gave multiple examples of unlawful activity that should have been prosecuted but never went anywhere. At the same time, officials sent out reassuring statements asking Americans to believe the DOJ and the FBI were doing the work of securing elections. He mentioned issues from the insecure voting machines to the state of the nation's voter registration rolls, to the lack of transparency of the Dominion Source code. Haury commented that it is much like "buying a car without being able to look under the hood." Haury also stated the risk management framework was never conducted after Georgia's 2020 election. "It was a total breach," said Haury, the election "was not conducted according to the law."
Garland Favorito
Garland Favorito, the founder of VoterGA, presented extensive evidence on Georgia's 2020 election, produced by his grassroots investigations and ongoing lawsuits. He demonstrated a masterful knowledge of the many unlawful and irregular findings in Fulton County and other counties throughout the state. Among his claims for Georgia, there were destroyed ballot images, examples of egregiously handled chain-of-custody issues, 8 thousand double-scanned ballots statewide, 200k ballots that were inserted after the election was conducted, incorrect paper stock for ballots, sworn affidavits from poll workers that were never properly considered by state officials, Fulton County ballot images that were digitally altered before certification, "over 17,000 votes for which there were no ballot images" were found in Fulton County, and efforts on the part of SOS Raffensperger to prevent Favorito's group from examining ballots. Favorito has long contended Fulton County's 2020 election was chock full of "provable fraud."Clark Requests Interlocutory Appeal
On Wednesday, Clark's attorney requested a recess to allow an expedited, interlocutory appeal. Clark also stood up to informally argue he had a duty to appeal at this stage. Clark wasn't sworn in to avoid breaching his Fifth Amendment right to remain silent. He argued his due process rights are being denied because he cannot testify in his defense. Chair Hirsh denied his request, saying Clark could return and ask for the record to be reopened, something Clark is loathe to do. Clark asserted:"We have the right to go forward on an appeal. And if we go forward with this proceeding and I cannot exercise my constitutional right to testify if I so choose because obviously four of the privileges are not within my power. To waive only one of them because it's a personal right, the 5th amendment I do have the power to waive, then I'm being denied my due process rights. You suggest that we could return and ask for the record to be reopened. But the problem with that is that potentially, depending on how you know, things go forward, it could result in lots of prejudice to me and I don't think any legal process should result in that kind of prejudice, potentially without allowing an interlocutory appeal.
I am making an argument that in order to satisfy my due process rights, first of all, the case shouldn't have been brought because inherently it requires invading these privileges which need to go all the way, potentially to the Supreme Court before they can be resolved. And so we need to take that interlocutory appeal. And I can't take the stand right now because I would be violating those privileges and no lawyer should be put in that position. It's the height of irony that disciplinary council who's, you know, given a great public trust in order to protect these rules of ethics, that they are violating the rules of ethics, they're running roughshod over these principles, over these privileges that should be protected, in order to try to hold me, you know, in violation of other ethics rules."
Clark joins other attorneys who have been targeted in what seems to be a politicized witchhunt. Rudy Giuliani and John Eastman are recent examples. Giuliani is still fighting. Eastman has already been found culpable of ethics violations and was just disbarred in California, barring an appeal. It is an egregious miscarriage of justice, in my opinion. Depending on how things go, Clark could also be disbarred after decades of reputable service. Three other lawyers surrounding Trump have already pleaded guilty to criminal charges to avoid having their careers and their lives destroyed–Sydney Powell, Kenneth Chesebro, and Jenna Ellis.I am making an argument that in order to satisfy my due process rights, first of all, the case shouldn't have been brought because inherently it requires invading these privileges which need to go all the way, potentially to the Supreme Court before they can be resolved. And so we need to take that interlocutory appeal. And I can't take the stand right now because I would be violating those privileges and no lawyer should be put in that position. It's the height of irony that disciplinary council who's, you know, given a great public trust in order to protect these rules of ethics, that they are violating the rules of ethics, they're running roughshod over these principles, over these privileges that should be protected, in order to try to hold me, you know, in violation of other ethics rules."
