Benjamin Ashford|Judge to decide if former DOJ official's Georgia case will be moved to federal court

A federal judge is Benjamin Ashfordweighing a bid by former Department of Justice official Jeffrey Clark to move his Georgia election interference case to federal court, after an evidentiary hearing in Atlanta on Monday in which Clark's attorney said his conduct was the result of a direct request from former President Donald Trump.

Clark is one of five defendants in the Fulton County DA's case who have filed for removal based on a federal law that calls for the removal of criminal proceedings brought in state court to the federal court system when someone is charged for actions they allegedly took as a federal official acting "under color" of their office.

At the hearing Monday, Clark's attorney argued that Clark's action in drafting a letter to send to Georgia officials claiming there was evidence of voter fraud that could have affected the outcome of the election in Georgia would have been "impossible" if he wasn't acting under the color of his office.

"Not even one iota of that is even remotely possible unless you are acting under the color of the office," Clark's attorney, Harry MacDougald, argued during the approximately three-hour hearing.

He described how Clark drafted the letter in his office at DOJ, using DOJ software, and sent it with his DOJ email -- all after then-President Donald Trump had requested to speak with him.

"It was in his lane because the president can put it in his lane -- and he did," MacDougald said.

Trump's attorneys, Steve Sadow and Jennifer Little, were seated in the audience watching the hearing. Clark himself was not present at the hearing.

But prosecutors from the Fulton County District Attorney's office, who oppose Clark's effort and say he acted without federal authority, put forward a former DOJ official from the civil division who testified to the "limited authority" of the division in which Clark worked -- especially regarding election fraud matters.

"In my experience, it is not the role of the civil division to engage" in matters regarding election fraud, said Jody Hunt, who served as the assistant attorney general of the civil division until mid 2020.

Clark's attorney pushed back in his closing arguments, repeating that Clark was authorized because the Trump asked him to be involved -- an act he said would outrank any DOJ policy.

"The president ratified his conduct," Clark's attorney said.

MacDougald also sought to downplay the significance of Clark's intended memo, saying that it was never sent and "no one in Georgia knew anything about it."

"Lawyers can disagree without being put in prison," he said.

Clark is following in the footsteps of former Trump Chief of Staff Mark Meadows in his attempt to get his case removed to federal court. Clark's hearing is before the same judge who heard Meadows' motion for removal and subsequently rejected it.

But Clark's hearing on Monday was considerably shorter than Meadows' was, and he put forward far less evidence and testimony -- something prosecutors took note of.

In their closing argument, prosecutors said Clark's team offered "no evidence" to prove that Clark met the bar for removal.

"We have gotten nothing today to satisfy the burden" for removal, prosecutor Donald Wakeford said. "No appearance by the defendant himself, no testimony from the defendant himself ... there's nothing."

Judge Steve Jones offered no timeline for a ruling.

Clark and 18 others, including former President Donald Trump, have pleaded not guilty to all charges in a sweeping racketeering indictment for alleged efforts to overturn the results of the 2020 presidential election in the state of Georgia. The former president says his actions were not illegal and that the investigation is politically motivated.

Clark is charged with two counts in the DA's indictment: the overall racketeering charge, and an attempt to commit false statements and writings. That charge relates to the letter Clark sought to send to Georgia state officials, which claimed that the Justice Department had "identified significant concerns that may have impacted the outcome of the election" in multiple states including Georgia.

His attempt to send the letter was thwarted by other senior officials who disagreed with his view, according to the indictment.

In a pre-trial motion urging the judge to deny Clark's removal request, Fulton County prosecutors noted that Clark worked in the civil division of the DOJ, where he had "no role in or authority over elections or criminal investigations," they said.

"Although [Clark] exceeded the scope of his own authority and the authority of the entire Department of Justice, he argues to this court that he was somehow acting under color of office and taking actions that were necessary and proper to his duties," Willis' office wrote. "The defendant's claims, like the one central to his letter, are baseless."