By Annie Grayer, Ryan Nobles, Zachary Cohen and Whitney Wild, CNN
The House select committee investigating the January 6 attack on the US Capitol approved on Wednesday night the report to hold former Department of Justice official Jeffrey Clark in contempt of Congress for defying his subpoena by refusing to answer questions during a recent deposition and failing to hand over documents to the panel.
But the panel is also giving Clark another opportunity to appear, on Saturday, in light of a new letter he sent to the committee stating that he intends to claim Fifth Amendment protection.
A select committee aide tells CNN that due to Clark getting the new deposition date, the plan is to wait to hold a full House vote on the contempt report until at least after the weekend.
If Clark answers the committee’s questions by pleading the Fifth Amendment, the panel will likely have to stop the process of holding him in criminal contempt. If Clark continues to stonewall the committee, and invoke the Fifth Amendment in ways the committee deems illegitimate, the panel will proceed with a floor vote as soon as next week.
Committee Chairman Bennie Thompson, a Mississippi Democrat, said in his opening remarks on Wednesday that Clark will be given the opportunity to appear in front of the panel on Saturday for a new deposition in light of him sending the new letter to the committee indicating that he intends to claim Fifth Amendment protection.
“Even though Mr. Clark previously had the opportunity to make these claims on the record, the Select Committee will provide him another chance to do so. I have informed Mr. Clark’s attorney that I am willing to convene another deposition at which Mr. Clark can assert that privilege on a question-by-question basis, which is what the law requires of someone who asserts the privilege against self-incrimination,” Thompson said. “We have just learned that Mr. Clark has agreed to appear again to continue his deposition.”
But Thompson said the committee would proceed with considering the contempt request, and all nine members voted to pass the report out of committee Wednesday night. Following passage in the House chamber, it would get referred to the Justice Department, which would then have to decide whether to prosecute.
Republican Rep. Liz Cheney of Wyoming, the vice chair of the committee, said Wednesday that the committee “will not finalize his contempt process if Mr. Clark genuinely cures his failure to comply with the subpoena this Saturday.”
Rep. Jamie Raskin, who also serves on the committee, told CNN after the meeting that Clark’s attempt to assert his Fifth Amendment right at this point in the process “may reflect an eroding confidence in the executive privilege argument.”
The Maryland Democrat warned, however, that pleading the Fifth will not be a simple process and it will still force Clark to confront specific questions about what he may or may not know about the events leading up to January 6.
“You can’t plead the Fifth to an entire prosecution. You can’t plead the Fifth to every question you might be asked. So it applies only when you have a specific and reasonable apprehension that your answer could be used against you in a criminal prosecution,” Raskin said.
He pointed out that when asked a specific question Clark will be forced to confront what about the query may put him in a compromised legal situation: “He didn’t state which criminal statutes he was referring to — whether it was election fraud or criminal conspiracy or whatever — but presumably he would have an opportunity to explain what are the underlying criminal statutes he’s afraid of being prosecuted under.”
Although Raskin said the committee would not “begrudge anyone in honest invocation of the Fifth Amendment,” he added that Clark’s case to invoke it here is “certainly unusual” and noted that Clark’s former Justice Department superiors, Jeffrey Rosen and Richard Donoghue, had spoken to the committee without invoking the Fifth Amendment.
The criminal contempt report marks another critical milestone in the investigation as the panel hopes that even the remote threat of jail time inspires more Trump-aligned witnesses to cooperate. A decision by Clark’s former department to prosecute him on criminal contempt charges would make him the second person to face a serious legal penalty for blowing off the select committee’s requests.
Former President Donald Trump ally Steve Bannon is awaiting trial for a misdemeanor criminal contempt charge after he refused to show up for a deposition or provide documents to the committee, citing executive privilege claims made by Trump.
The contempt report on Clark, which was released Tuesday night, outlines the efforts the committee made to get him to comply with the subpoena, and Clark’s failure to do so.
Hours before the meeting was scheduled to take place, Thompson told CNN the new letter to the committee suggested Clark may invoke his Fifth Amendment right to not answer the committee’s questions.
The letter indicated a new strategy by Clark, who has gone to great lengths to avoid cooperating with the committee, including claiming that any information he’d be able to provide is protecting by either executive or attorney-client privilege.
Clark has not formally invoked the Fifth Amendment with his dealings with the committee, but Thompson said his actions indicated that was the direction he was headed. The chairman made it clear, however, it was not something that would prevent the committee from moving ahead with its plans to refer him for criminal contempt.
“He walked out on a deposition,” Thompson said. “That kind of puts you in a weak position to make any type of assertion.”
Democratic Rep. Zoe Lofgren of California, one of the members on the panel described the new letter from Clark’s legal team as “frivolous” earlier in the day.
“They’ve just sent a very long letter that I’ve read through that just seems like frivolous honestly, but I want the lawyers on the committee staff to give us their advice,” Lofgren said.
In its 22-page report, the committee said Clark had violated Justice Department policy when he met with Trump to discuss efforts to overturn the 2020 election and, further, held conversations with members of Congress about delegitimizing the election.
The report states that the committee communicated with Clark’s attorneys multiple times, even allowing an extension for them to produce records and appear for a deposition. But when Clark did finally appear, the committee said, his attorney handed the panel’s staff a 12-page letter objecting to almost every question on the grounds that Trump was entitled to confidential legal advice — what Clark’s attorney called a “sacred trust.”
The letter further argued that “the general category of executive privilege, the specific categories of the presidential communications, law enforcement, and deliberative process privileges, as well as attorney-client privilege and the work product doctrine, all harmonize on this point,” according to the report.
After being pressed to answer questions that the committee believed wouldn’t justify executive privilege claims, Clark “abruptly left” the deposition.
The documents Clark was asked to hand over included communications with Trump, senior members of the White House, Trump’s reelection campaign, John Eastman — a conservative lawyer working with the then-President’s legal team — and state officials.
Ahead of the vote, Thompson said he felt confident the measure will pass the committee with ease, but did not guarantee a unanimous vote.
“I think we’ve made the effort to be as agreeable as we can, and now it’s time for us as a committee to make a decision and move on,” Thompson said. “We can’t continue to waste time on a person who was subpoenaed who doesn’t follow through on what’s required.”
This story and headline have been updated to reflect additional developments Wednesday.
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