# Transcribed Interview of Jeffrey Clark (November 5, 2021)/10:07am

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​For THE WITNESS:
HARRY MACDOUGALD
Caldwell, Carlson, Elliott & Deloach, LLP
Two Ravinia Drive
Suite 1600
Atlanta, GA 30346
​ Good morning. This is a deposition of Jeffrey B. Clark, conducted by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, pursuant to House Resolution 503.
Mr. Clark, if you could please state your full name and spell your last name for the record.
The Witness. Sure. Jeffrey B. Clark. Clark is C-l-a-r-k.
. This will be a staff-led deposition. Members of the select committee, I believe, are already in attendance and may also choose to ask questions.
My name is and I'm the chief investigative counsel to the select committee. I think we have Vice Chair Cheney, Ms. Lofgren, two members of the select committee, who are attending via Webex.
We are conducting a deposition in person.
So, under the House deposition rules, neither committee members nor staff may discuss the substance of the testimony that you provide today, unless the committee approves release. This is essentially an executive session of the select committee.
You and your attorney will have an opportunity to review the transcript. The court reporter is taking a verbatim account of the testimony. And you'll have a chance, Mr. Clark, to read that and review it before it is finalized to ensure that it is correct.
Before we begin, I would like to describe just a few ground rules. We'll follow the House deposition rules that we have provided to your counsel, Mr. MacDougald, previously. Under the House deposition rules, counsel for other persons or government agencies may not attend, but you are permitted to have your attorney present, and I see that you do have your attorney with you.
​Mr. MacDougald, if you could just introduce yourself and spell your name for the court reporter?
Mr. MacDougald. Yes, sir. I represent Mr. Clark in this proceeding. My name is Harry MacDougald. My last name is spelled M-a-c, capital D-o-u-g-a-l-d.
So, as noted, there is an official reporter transcribing the record of the deposition. Please wait until each question is completed before you begin your response. We will try to wait until your response is complete before we ask our next question. The stenographer cannot record nonverbal responses, such as shaking your head. So it's important that you answer each question with an audible verbal response.
We ask that you provide complete answers based on your best recollection. If a question is not clear, please ask for clarification. If you do not know the answer, then just simply say so. You may only refuse to answer a question to preserve a privilege recognized by the select committee. If you refuse to answer a question based on privilege, staff may either proceed with the deposition or seek a ruling from the chairman based on the objection. If the chairman overrules such an objection, you are required to answer the question.
I also have to remind you that it is unlawful to deliberately provide false information to Congress. Since your deposition is under oath, we ask that you please stand and raise your right hand to be sworn by the court reporter.
[Witness sworn.]
    BY
Q So, Mr. Clark, I want to give you a chance to open—to provide any opening comments you have. But I just want to make sure you know who everyone is on our side of the table.
So I'll introduce myself. I am the chief investigative counsel. With me ​ who are senior investigative counsel; who is an investigative counsel; who are also counsel to the committee; and I see , who is the deputy staff director and chief counsel to the select committee; and who is our parliamentarian. who is a researcher, is here as well.
On the video, again, I think our staff director, has joined. And I also introduced before Ms. Lofgren and Ms. Cheney.
So, with that, if there is anything—
Mr. MacDougald. Yes. I would like to advise counsel and the committee that I delivered a letter to which was addressed to Representative Thompson, on behalf of Mr. Clark that asserts executive privilege with respect to testimony and documents that have been subpoenaed from Mr. Clark.
The grounds of our assertion are set forth in the letter. It is 12 pages. And, based on those objections, we do not intend to answer any questions or produce any documents today, but we have appeared in compliance with the subpoena in order to assert those objections, as opposed to just refusing to show up.
All right. So I appreciate that the letter has been delivered. We did receive it, as you—
Mr. MacDougald. And I actually have some copies for other counsel, a few. Maybe not for everybody, but I would be happy to pass those around, keeping one for myself.
Thank you, Mr. MacDougald.
So let me make sure I understand. The letter, which I haven't had a chance to read yet, sets forth the position that Mr. Clark will not answer any question, regardless of its subject matter.
​Mr. MacDougald. Correct.
Due to executive privilege.
Mr. MacDougald. Correct.
Will also not produce any documents.
The Witness. Correct.
Mr. MacDougald. And I interrupt just to say also on the basis that it would be prudent to await the conclusion with finality of the judicial review proceedings that are going on in the DDC.
Again, I haven't had a chance to read the letter. But I will say for the record that our intention today was to ask questions well beyond direct communications with the former President, questions about your involvement with Members of Congress, questions about your work within the Department of Justice, your interaction within the Department well beyond direct communications with the President.
Again, still your position that, beyond direct communications, all of the entire subject matter is subject to executive privilege?
Mr. MacDougald. Yes. That is our position, And the reason for that is that the privileges that are under the overall umbrella of executive privilege are numerous, including Presidential communications. In addition, as a Department of Justice official, there is a law enforcement privilege, law enforcement investigation privilege. There are—there is a deliberative process privilege. There are any number, not to mention the attorney–client privilege. So all of these things are applicable in this context. I understand that's disputed by the committee.
Uh-huh.
Mr. MacDougald. And I don't want to get into an argument with you all about ​that today. That's being argued in court. And there will ultimately be a decision about that. We don't know where that line is going to be drawn.
Mr. Clark finds himself in a position of having worked for a President who has exerted executive privilege, giving him a letter asserting executive privilege. And, therefore, as his lawyer, I can't allow him to be exposed to the risk of guessing where that line is going to be drawn. And so, far now, we are standing on executive privilege. We will not be answering any questions or producing any documents.
You are in receipt, Mr. Clark, of—are you not, of a letter dated July 21st, I believe, of earlier this year, from the Department of Justice, indicating that, in view of the current White House, the current Department of Justice, it would not be appropriate to exert executive privilege?
Mr. MacDougald. We understand that's the position of the Department of Justice on this matter—
The Witness. But I—
Mr. MacDougald. And the White House. I mean, he did receive a letter. Okay?
The Witness. I want to reserve all rights as to that letter, including rights to—to make any and all arguments about it, but I am in receipt of the letter, yes.
Okay. Can we take 5 minutes?
Mr. MacDougald. Sure.
. just want to consult with the parliamentarian about sort of what, if anything, we need to do on the record to preserve the ongoing conversation.
Mr. MacDougald. Sure.
I appreciate it. Thank you.
Mr. MacDougald. Thank you, sir.
​ So we'll take a brief recess.
[Recess.]
BY :
Q Thank you for your indulgence. I had a chance to quickly look at the letter. And I do want to ask a few questions just to clarify more specifically the basis of the privilege assertion and ensure that we have on the record some of the things that happened before today.
So, Mr. Clark, you were subpoenaed back on October 13th to appear before the select committee, and we agreed to defer that to today when you obtained new counsel,
Mr. MacDougald. Is that right?
A That's correct.
Q And were you given, and I asked you about this before, a letter back — dated July 26th of 2021, that — and I'm going to quote from it. It was from the Department of Justice, indicating that committees had sought your testimony about any efforts by President Trump or any DOJ officials to advance unsubstantiated allegations of voter fraud, challenge the 2020 election results, stop Congress' count of the electoral college vote, or overturn President Biden's certified victory.
And, in response to congressional inquiries on those subject matters, the Department of Justice indicated — and I'm going to quote again — given these extraordinary circumstances, including President Biden's determination that executive privilege — determination on executive privilege, which was that it wouldn't be appropriate, and having reviewed the scope of the committee's request and reviews, the Department authorizes you to provide unrestricted testimony to the committees irrespective of potential privilege, as long as the testimony is confined to the scope of the interviews as set forth by the committees. And you received that letter back in July. Is ​that right?
A I've answered that question already. I will refer to counsel.
Q And are you aware that other representatives of the Department of Justice, frankly your superiors at the time that you were employed there, received a similar letter and have provided testimony to congressional committees?
A Yes.
Q And, yet, your position today is in stark contrast to theirs.
Mr. MacDougald. Yes, we address that in the letter.
Okay.
BY
Q Now, in the letter, which, again, I appreciate you giving us this morning, but we have not had a chance to review before.
Mr. MacDougald. And I would like, on the record, to apologize to you, , and to the committee and staff for being so late in delivering this item to you when you were inquiring about our position. So, two things: One, I want to thank you for the one-week extension. Very much appreciate it. But, secondly, to apologize for the inconvenience. Having just gotten into the matter, we have been working on this right up until yesterday afternoon and preparing what we were going to say, and we just weren't ready to tell you.
Mr. MacDougald, I understand. These are important issues, and we want to make sure you and your client are fully prepared.
Mr. MacDougald. It is a very important matter.
We are trying our best to get to the fact and want to make sure we are treating all witnesses with fairness and professional consideration.
But, going back to the letter, attached to the letter is a letter that you received ​from Doug Collins, who represented the former President, that essentially says, upon receipt of that DOJ authorization, that the former President will not seek judicial intervention to prevent your testimony or the testimony of the other Department of Justice officials who have already received letters from the Department similar to July 26th, 2021, letter.
So you attach a letter explicitly from the former President saying that he would not seek judicial intervention to prevent you from going forward with this deposition or other inquiries from Congress.
Mr. MacDougald. we address the letter and what it means in detail in our letter. And we do not agree with the characterization that you just made of that letter. We view that letter as directly asserting executive privilege. And the nonobjection statement that you read from is expressly conditioned on certain things not happening. Those things have happened.
Furthermore, the President has in fact filed suit asserting executive privilege against the committee, and specifically, he referenced his intention of executive privilege with respect to former DOJ personnel, such as Mr. Clark. So, under the circumstances, I represent a client who asked—the President for whom he worked has unequivocally asserted executive privilege.
I understand that you all don't agree with that, and you think the current President has the authority to waive it. We don't agree with that. That's being decided in court now.
Has there been any further communication, direct communication, from the former President's representatives to Mr. Clark about executive privilege?
Mr. MacDougald. I have had no communication with any attorney for Mr. Trump about any of this.
​ Your letter indicates — and I'm looking at pages 2 and 3 — that the former President did directly direct other witnesses who have been subpoenaed by the subcommittee — Mark Meadows, Dan Scavino, Kash Patel, and Steve Bannon — asserting — instructing them not to testify. Did you get any similar communication from the former President similarly directing that you not provide testimony?
Mr. MacDougald. We contend the August 2nd letter from Mr. Collins on its face and in light of subsequent developments constitutes such a direction.
And your letter also cites the pending litigation. So, to be clear about your position, the pending litigation that the President has filed, Trump v. Thompson, in the D.C. district court governs, in your view, your ability to testify to the select committee without regard to executive privilege.
Mr. MacDougald. That's not accurate.
Okay. Well, help me understand.
Mr. MacDougald. So the President has asserted executive privilege. He's instructed Mr. Clark to assert executive privilege.
And your view is — I'm sorry to interrupt you.
Mr. MacDougald. Yes.
But that is in the August the 2nd letter?
Mr. MacDougald. And in light of subsequent developments and in light of footnote 2 in their brief, in their original brief in support of the application for preliminary injunction. So all those things together clearly instruct Mr. Clark to abide by President Trump's invocation of executive privilege. And, as his attorney, I cannot expose him to the risk of going against that.
Let me pause and see if anybody else — go ahead, Jeff. ​Mr. Schiff, do you have any questions?
Mr. Schiff. I do. I just want to make sure that I understand correctly. You have not received any communication from the President instructing Mr. Clark to assert executive privilege. Is that correct?
Mr. MacDougald. That is not correct. I've just explained that.
Mr. Schiff. No, you haven't. So have you received a letter —
Mr. MacDougald. You may not agree with the explanation, but it is an explanation. We have a letter from August 2nd asserting —
Mr. Schiff. Well —
Mr. MacDougald. — the privilege. We have subsequent developments that invalidate the conditions to testimony —
Mr. Schiff. Mr. —
Mr. MacDougald. — we have the President's lawsuit.
Mr. Schiff. Do you have a letter from the President instructing Mr. Clark to assert executive privilege?
Mr. MacDougald. Yes.
Mr. Schiff. Do you have one or do you not?
Mr. MacDougald. Yes. It is attached to my letter.
Mr. Schiff. Is that a letter to Mr. Clark?
Mr. MacDougald. Yes. It is.
Mr. Schiff. From the President's counsel instructing him to assert executive privilege.
Mr. MacDougald. That's correct.
Mr. Schiff. Can I see that letter? This is the letter that concludes: Nonetheless, to avoid further distraction and ​without any way otherwise waive an executive privilege associated with matters the committee are purporting to investigate, President Trump will not agree — will agree not to seek judicial intervention to prevent your testimony or the testimony of five other former Department officials: Richard Donoghue, Patrick Hovakimian, Byung "B.J." Pak, Bobby Christine, and Jeffrey Clark. We have already received letters from the Department similar to the July 26th letter you received. As long as the committees do not seek privileged information from any other Trump administration officials or advisers. If the committee do seek such information, however, we will take all necessary appropriate steps on President Trump's behalf to defend the Office of the Presidency.
This is the letter you're referring to?
Mr. MacDougald. Yes, Mr. Schiff. I apologize for the —
Mr. Schiff. And you are aware that President Trump has not sought judicial intervention to prevent Mr. Clark's testimony?
Mr. MacDougald. Not specifically asking Mr. Clark, but the current lawsuit against the committee specifically refers to the invocation of executive privilege as to persons like Mr. Clark in footnote 2 of the opening brief in support of their application for preliminary injunction, which has been delivered, of course, to committee counsel.
Mr. Schiff. I just want to make sure that I have the chronology correct. The President's counsel wrote to Mr. Clark saying that they would not seek judicial intervention to prevent his testimony, and they have not done so. Correct?
Mr. MacDougald. That is not a fair or accurate summary of the letter. The letter attaches conditions to that, and those conditions have not been met.
Mr. Schiff. Well, if, presumably, Counsel, if the conditions have not been met, President Trump was more than capable of seeking judicial intervention to stop Mr. Clark's testimony. Correct? ​Mr. MacDougald. Yes, Congressman Schiff.
Mr. Schiff. And he has not done so. Has he?
Mr. MacDougald. Representative, we disagree with that. And we're not here to have an oral argument about these —
Mr. Schiff. Counsel, I am just establishing the facts.
Mr. MacDougald. Well, the facts are plain in the documents.
Mr. Schiff. And you are aware, Mr. Clark, that those in a higher position in the Justice Department, who arguably would have a stronger claim of privilege if there was one to be made, have testified before Congress as to the same matters that you are being asked to testify?
The Witness. Mr. MacDougald has answered that question, respectfully, Representative Schiff.
Mr. Schiff. You are aware of that, Mr. MacDougald?
Mr. MacDougald. Oh, yes. It's addressed in the letter. It's addressed in the letter.
And what I would say to you all is I don't want to get into any kind of a bickering or arguing about the contours of executive privilege and whether an argument we have made is correct in person verbally. These are very important matters. We have worked hard on this letter to assert the objections. And we invite you all to respond to us, but we think that dialogue is best conducted in writing because it is so important. And it's important to be clear and precise in what we say.
And our position, we've stated it. We're not answering questions today. We're not producing documents today. We are leaving the door open for further dialogue about the points being raised in the letter. And I think that's the process that we ought to pursue. ​Now, you know, the Trump v. Thompson case will ultimately be decided one way or the other, and then we'll know where we stand on executive privilege. Both sides will know.
Mr. Schiff. Before I yield back to committee counsel, I just want to state, for the record, people in a superior position to Mr. Clark's who were at the Justice Department and were his superiors at the time of the events of interest to the committee have testified. The current Justice Department and the current President of the United States have not asserted privilege, in fact have instructed Mr. Clark they will not assert privilege.
He has refused to testify. He has refused to testify, not on the basis of any action that President Trump has taken to seek judicial intervention in this proceeding. We have not received any communication that I'm aware of from the former President asserting privilege.
And Mr. Clark, in my opinion, is asserting — arrogating to himself a decision that his superiors disagree with, that the President has not asserted to this committee, and in defiance of the lawful process of this committee.
And I yield back to counsel.
Mr. MacDougald. And, respectfully, for the record, disagree with Congressman Schiff's assertion, but let's leave it there.
Let me just ask, to follow up on Congressman Schiff's question, has there been any effort to confirm your interpretation of the August 2nd letter with the former President's counsel?
Mr. MacDougald. I have indicated previously I have not communicated with them, but I can read.
So the interpretation that you're providing today that the August 2nd letter is, in fact, a direction not to testify, just based on — ​Mr. MacDougald. We go through that in detail in this letter.
Okay.
Mr. MacDougald. So there are a number of circumstances that combine the direct statements in the letter.
Beyond that, there — the statement that you all — the committee is relying on expressly states that it is not waiving anything, and there are conditions attached. Those conditions are not being met, and there is pending executive privilege lawsuit that specifically refers to people in Mr. Clark's position.
And, again, Mr. MacDougald, I appreciate that that is your position. I think it's important for us, as we consider options, contempt referrals or litigation to make a record just to make sure —
Mr. MacDougald. I understand that.
— that we're clear as to what the basis of the assertion is, on what facts or communications it relies. So I don't mean to sound belligerent. I'm just trying to ensure that we understand —
Mr. MacDougald. I understand and respect that. You have a job. I have a job.
To that end, we do need to go through, not every question that I would have asked, but I do need to flag particular areas that we seek to develop. I understand your position would be, as I go through those, that you will not answer that question due to assertion of executive privilege, but that, Mr. MacDougald, establishes the factual basis of what we're seeking as we consider further proceedings.
Mr. MacDougald. We're not willing to do that.
Well, again, this is a deposition of the select committee. I have to go through and ask some questions that will understandably prompt privilege. But, to ​ensure that the court ultimately or the Justice Department has a record of the subject matters and can evaluate the privilege claim, it's important for us to put those subject matters in the form of questions directly to Mr. Clark.
Mr. MacDougald. Let me confer with Mr. Clark.
Do you mind if we step out?
Yes. Of course. We'll go off the record.
[Recess.]
Mr. MacDougald, again, our intention would be just to complete a record to ensure that the court or the Department has a clear record of the subject matters. And we want to go through those questions, understanding that they will trigger an assertion of privilege, but we think it is important to put them to the scope of our intended areas of inquiry on the record.
Mr. MacDougald. Our position is that we have asserted the objection, and there's a pending court proceeding that will determine the contours of executive privilege with respect to the committee's investigation. And it is premature to engage in that exercise and that it is just unproductive to engage these questions. And we invite the committee, as we did in the letter, to have some dialogue with us. But, pending resolution of that case, we do not think that going through that process that you described is productive or worthwhile. It is just not what we are doing.
As we say in the letter, if the committee in the meantime would like to significantly narrow the scope of the inquiry that it wishes to pursue with Mr. Clark, we are willing to discuss that and do that. I mean, if it is more narrowly focused on the events of January 6th, that's something that we can work with you on. But, right now, executive privilege not — Mr. Clark has ethical responsibilities to respect the assertion of privilege until this is determined judicially. ​ You, right now, have no idea exactly what it is I intend to ask Mr. Clark because I haven't had a chance yet. We haven't had any negotiations. We haven't had any sort of proffer or exchange of information. So it's important, in the view of the select committee, to establish for Mr. Clark, for the Department of Justice, for potential court to evaluate the claim, to put on the record what the scope of our area of inquiry is of Mr. Clark. And, again, I understand that he's not going to provide—is unlikely to provide any answers to those questions, and that is his right at this time to assert that privilege.
But, to the extent we are going to challenge the privilege, Mr. MacDougald, we need a record that would form the basis of that challenge.
Mr. MacDougald. One second.
[Discussion off the record.]
Mr. MacDougald. The concern that I have, , is that, at some point, this devolves into badgering the witness. And I would be surprised if the committee undertook litigation against Mr. Clark concerning the scope of the executive privilege while the Trump v. Thompson case is ongoing. That would be highly duplicative, wasteful of resources. And most of those privilege questions can be answered by that case.
And so, with respect to topics, you know, the assertion of privilege, it's—you know, my client is in a bind. He's under subpoena. And, yet, the President that he worked for has asserted executive privilege. Okay? He cannot testify under those circumstances, period.
And so we've got a court proceeding underway that's going to resolve the scope of that. And the prudent thing is to let that play out. And, like I said, in the meantime, if the committee would like to significantly narrow the scope of the inquiry, we're certainly ​willing to entertain that. And, of course, we are willing to have a dialogue about the privilege assertions in the document, and if the committee chose to identify with greater specificity in that dialogue what it was seeking, and we could respond and move forward.
Mr. MacDougald, we haven't had a chance to have this conversation because there has been no discussion, no negotiations.
Mr. MacDougald. One at a time.
I understand. There is, though, the Miers case clearly rejects a blanket assertion of privilege, even when asserted by a sitting President with respect to White House counsel. The privilege must be asserted question by question, area by area.
And I understand your point about badgering.
I don't intend to badger you or Mr. Clark with those questions.
With that said, it's important to get on the record the areas of inquiry so that a court could potentially adjudicate the application of a privilege.
Mr. MacDougald. I think that if the committee is interested in pursuing the inquiry, balancing Mr. Clark's interests in complying with his duties as a lawyer in light of President Trump's invocation of the privilege, the fair thing do to Mr. Clark is to let the Trump v. Thompson case play out rather than badgering.
Now, if there is some alternative method of preserving the record, I'm happy to discuss that. But I think sitting here for 5 hours while counsel and committee members propound questions that we're not going to answer is not a good use of anybody's time. And, as far as—and, again, on the timing of this and us not having had a dialogue, before I got involved, Mr. Clark asked for a three-week extension. That was not agreed to. That's okay. You get to decide, which made the one week you gave me especially appreciated when I—when we spoke.
​But it is a significant matter. There are weighty and difficult legal issues involved. And, you know, I'm not going to let Mr. Clark produce either attorney-client or executive privilege or any other privileges in response to these questions. I don't know where that line is going to end up. So I have to protect him. So we are just not going to answer the questions.
I understand. We're talking past each other. I'm not trying to talk you out of your position at this point. I'm simply trying to establish a record that can be considered by the select committee first and ultimately potentially by the Attorney General of the United States if there's a criminal contempt referral or a Federal judge if there is some sort of effort civilly to enforce the subpoena. We don't have that complete record at this point. I'm not saying that any of that's going to happen, but we need to create a record to consider next steps. So it's not meant to be badgering. I understand.