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Citizens United

10/30/2025 | Press release | Distributed by Public on 10/30/2025 09:43

CU Files Amicus Brief in the Matter of Jeffrey B. Clark (District of Columbia Court of Appeals)

DISTRICT OF COLUMBIA COURT OF APPEALS

In the Matter of: JEFFREY B. CLARK, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 455315) Case No. 25-BG-0731 Disciplinary Docket No. 2021-D193

BRIEF OF CITIZENS UNITED AS

AMICUS CURIAE

IN SUPPORT OF RESPONDENT

OODMAN

(DC

435493) D

HILLON

ROUP

. 2121 Eisenhower Avenue, Suite 608 Alexandria, VA 22314 [email protected] October 27, 2025

Counsel for Amicus Curiae Citizens United

CERTIFICATE OF COUNSEL REGARDING AUTHORITY TO FILE

Pursuant to D.C. App. R. 29(a)(2) and 29(a)(3), counsel for

Amicus Curiae

hereby certifies that counsel for all parties have consented to the filing of this amicus brief.

TABLE OF CONTENTS

INTEREST OF

AMICUS CURIAE

......................................................................... 1 INTRODUCTION .................................................................................................. 2 ARGUMENT .......................................................................................................... 5 I. Legal Representation Is Protected by the First Amendment as Core Expressive Activity. ...................................................................................... 5 II. Internal Communications Between a Lawyer and Client Are a Protected Subset of First Amendment Expression. ...................................... 9 III. The Sixth Amendment's Guarantee of Effective Counsel Fundamentally Depends on the Client

s Right to Receive Candid Legal Advice. .............................................................................................. 13 IV.

Jeffrey Clark's Proposal of a "Proof of Concept Letter" and Legal

Approach Constituted Internal Deliberations Protected by the First and Sixth Amendments. .............................................................................. 15 CONCLUSION ..................................................................................................... 24 CERTIFICATE OF COMPLIANCE .................................................................... 25 CERTIFICATE OF SERVICE ............................................................................. 26

iii

TABLE OF AUTHORITIES Cases

303 Creative LLC v. Elenis

, 600 U.S. 570 (2023) ............................................................................................13

Bush v. Gore

, 531 U.S. 98 (2000) ..............................................................................................19

Citizens United v. Federal Election Comm'n

, 558 U.S. 310 (2010). .............................................................................................. 1

Coleman v. Franken

, 767 N.W.2d 453 (Minn. 2009) ............................................................................19

Crawford-El v. Britton

, 523 U.S. 574 (1988) .............................................................................................. 6

Frederick Douglass Found. v. District of Columbia

, 82 F.4th 1122 (D.C. Cir. 2023) ............................................................................. 6

Garrison v. Louisiana

, 379 U.S. 64 (1964) ..............................................................................................22

Gentile v. State Bar of Nev.

, 501 U.S. 1030 (1991) ......................................................................................8, 21

Giboney v. Empire Storage & Ice Co.

, 336 U.S. 490 (1949) ............................................................................................22

Grayned v. City of Rockford

, 408 U.S. 104 (1972) ............................................................................................18

Greater Newburyport Clamshell All. v. Public Service Co. of N.H.,

38 F.2d 13 (1st Cir. 1988) ...................................................................................14

Greenberg v. Haggerty

, 491 F. Supp. 3d 12 (E.D. Pa. 2020) ...................................................................6, 7

Hinton v. Alabama

, 571 U.S. 263 (2014) ............................................................................................14

Høeg v. Newsom

, 652 F. Supp. 3d 1172 (E.D. Cal. 2023) ...............................................................20

Houston v. Norton

, 215 F.3d 1172 (10th Cir. 2000) ...........................................................................10

In re Jeffrey B. Clark

, No. 22-mc-0096, (D.D.C. July 31, 2023) .............................................................21

In re Primus

, 436 U.S. 412 (1978) ..................................................................................... 5, 7, 8

Knowles v. Mirzayance

, 556 U.S. 111 (2009) ............................................................................................14

Legal Servs. Corp. v. Velazquez

, 531 U.S. 533 (2001) ............................................................................... 6, 7, 8, 10

Martin v. EPA

, 271 F. Supp. 2d 38 (D.D.C. 2000) ........................................................................ 9

Mitchell v. City of Moore, Okla

., 218 F.3d 1190 (10th Cir. 2000) ...........................................................................10

Nat'l Inst. of Fam. & Life Advocs. v. Becerra

, 585 U.S. 755 (2018) .............................................................................................. 8

National Ass

n for Advancement of Colored People v. Button

, 371 U.S. 415 (1963) ................................................................................. 5, 12, 20

Ohralik v. Ohio State Bar Ass'n,

436 U.S. 447 (1978) .............................................................................................. 7

Perkins Coie LLP v. DOJ

, 783 F. Supp. 3d 105 (D.D.C. 2025) ....................................................................13

Rompilla v. Beard,

545 U.S. 374 (2005) ............................................................................................14

Smith v. Goguen

, 415 U.S. 566 (1974) .............................................................................................18

Stanley v. Georgia

, 394 U.S. 557 (1969) .............................................................................................. 9

Strickland v. Washington

, 466 U.S. 668 (1984) ..................................................................................... 13, 14

Thomas v. Collins

, 323 U.S. 516 (1945) .............................................................................................. 9

United States v. Eniola

, 893 F.2d 383 (D.C. Cir. 1990) ............................................................................14

United States v. Freeman,

761 F.2d 549 (9th Cir. 1985) ...............................................................................21

United States v. O

Brien,

391 U.S. 367 (1968) .............................................................................................. 5

United States v. Soto Hernandez

, 849 F.2d 1325 (10th Cir. 1988) ...........................................................................14

Virginia v. Hicks

, 539 U.S. 113 (2003) ............................................................................................23

Weisheit v. Neal

, 151 F.4th 855 (7th Cir. 2025) ..............................................................................14

Wiggins v. Smith

, 539 U.S. 510 (2003) ............................................................................................14

Other Authorities

Bryan A. Garner, The Winning Brief (3d ed. 2014) ......................................... 11, 12 D.C. Legal Ethics Comm.,

Ethics Op. 367: Representation of Client by Lawyer

Seeking Employment with Entity or Person Adverse to Client, or Adversary's

Lawyer; Clarification of Opinion 210

(2014) ......................................................16 Erwin Chemerinsky,

Lawyers Have Free Speech Rights, Too: Why Gag Orders on Trial Participants are Almost Always Unconstitutional

, 17 Loy. L.A. Enter. L. Rev. 311 (1997) ...................................................................................................... 9

Hearing Committee Report of the Board on Professional Responsibility Hearing Committee Number Twelve,

In re

Jeffrey Clarke, No. 22-BD-039 (Aug. 1, 2024) ..................................................................... 17, 19 Hearing, Vol. 7,

In re Jeffrey Clark

, Bd. Docket No. 22-BD-039 (D.C. Ct. App. Bd. Prof. Responsibility Apr. 4, 2024) ........................................16 Report and Recommendation of the Board on Professional Responsibility, Board Docket No. 22-BD-039 (July 31, 2025) ...... 2, 4, 15

21, 23 Robert Kry,

The "Watchman for Truth": Professional Licensing and the First

Amendment

, 23 Seattle U. L. Rev. 885 .................................................................. 5

Rules

D.C. Rules of Pro. Conduct R. 8.4(a) ......................................................................15 D.C. Rules of Pro. Conduct R. 1.2 ...........................................................................23 D.C. Rules of Pro. Conduct R. 1.6(k) ......................................................................16 D.C. Rules of Pro. Conduct R. 3.1. ............................................................... 8, 10, 20 Model Rules of Pro. Conduct R. 3.1 ........................................................................10 Pennsylvania Rule of Professional Conduct 8.4(g) ................................................... 6

INTEREST OF

AMICUS CURIAE

Citizens United is a nonprofit organization exempt from federal income tax under Section 501(c)(4) of the Internal Revenue Code. Its mission is to promote the principles of limited government, individual liberty, free enterprise, and traditional American values through public education and advocacy. A central pillar of the organization

s work is the defense and advancement of First Amendment freedoms, with a particular emphasis on freedom of speech. Citizens United is dedicated

to the correct construction, interpretation, and application of the Constitution, and it has pursued in the courts legal objectives that some antagonists have deemed long shots, controversial, and even unpopular.

See, e.g.

Citizens United v. FEC

, 558 U.S. 310 (2010). Given its involvement in political advocacy and public interest litigation, Citizens United has a keen interest in receiving creative and unfiltered legal advice to achieve its lawful objectives. The discipline of an attorney for advice he provided internally to a client and co-counsels could dramatically chill candid and innovative

No counsel for a party authored this brief in whole or in part. No party,

party's counsel, or other person-

other than

amicus

or its counsel

contributed money intended to fund the preparation or submission of this brief. Citizens United is a nonprofit, non-stock corporation duly organized under the laws of the Commonwealth of Virginia and recognized as a 501(c)(4) tax-exempt organization. It has no parent corporation. As a non-stock nonprofit entity, Citizens United does not have shareholders, and no publicly held corporation owns stock in Citizens United.

advice to all clients engaged in legal challenges to conventional wisdom and the status quo. For these reasons, Citizens United has a strong interest in the principles of legal representation underlying this case.

INTRODUCTION

Following the 2020 election, the Department of Justice was inundated with claims that election irregularities might have influenced the outcome of the election. While Attorney General Rosen and Deputy Attorney General Donoghue (

"Messrs. Rosen and Donoghue")

took the position that any such irregularities were not outcome-determinative, then-Acting Assistant Attorney General for the Civil Division Jeffrey Clark

("Mr. Clark")

believed that the alleged irregularities in Georgia warranted further investigation. R. & R. of the Bd. on Pro. Resp. at 3, Board Docket No. 22-BD-039 (July 31, 2025)

("R&R").

Because Mr. Clark also believed that the President of the United States, the head of the Executive Branch, agreed with his opinion and desired action by the Department of Justice, Mr. Clark prepared and proposed internally a forward-looking memorandum outlining what he believed the official position of the Department of Justice ought to be.

Id.

Upon being informed that his immediate superiors within the Department of Justice disagreed with this approach, Mr. Clark continued to advocate for the strategy based on a sincere belief that the underlying evidence remained subject to interpretation and warranted further investigation.

Id.

at 22. If his proposed strategy had been accepted, the Department

would have investigated claims of irregularities further,

and his proposed "concept"

letter would have been publicly disseminated; but, having been rejected, the proposed strategy and letter held no official status or effect, and his subsequent advocacy of them remained merely a matter of internal discussion and disagreement within the organization. Reasonable consultation with an attorney or, more specifically here, between attorneys,

requires more than just a perfunctory statement of the lawyer's opinion

followed by an immediate withdrawal of that opinion the moment there is any disagreement. Yet, this is precisely what the Board on Professional Responsibility

("Board")

is demanding of attorneys. To discipline Mr. Clark for holding a controversial or minority legal opinion would irreparably harm the legal profession and stifle the freedom of speech and thought upon which the entire profession relies.

An attorney's ability to provide candid legal advice and to develop creative

legal arguments and strategies, which are essential to competent representation, particularly in matters that challenge entrenched orthodoxies, depends vitally on the freedom to engage in internal deliberations without fear of reprisal by state actors. This freedom is critical because effective advocacy depends on open, honest communication

-both between lawyer and client and within the lawyer's own

professional circle.

While the legal profession is heavily regulated by ethical rules to ensure competence, confidentiality, and professionalism, these rules must work in harmony

with the free speech rights of both attorneys and clients, as well as the client's right

to zealous representation. A

lawyer's advice need not be perfect or immune from

hindsight criticism; it must simply be given in good faith and grounded in the

lawyer's best judgment at the time.

Rendering competent legal advice requires preliminary research and candid deliberation between colleagues, internal processes that are essential to filtering out ineffective or frivolous arguments. Importantly, many of these arguments will never see the light of day and will instead remain buried in private discussions or internal documents. However, when state actors subject preliminary arguments to discipline and punishment, they necessarily chill a

lawyer's capacity to offer lawful, innovative-

even if unorthodox or contentious

advice and representation. This chill undermines the essential freedoms of speech and thought that are essential to zealous legal representation. The recommendation that Mr. Clark be disbarred for advocating a minority legal position inside his organization implicates the First and Sixth Amendment rights of clients and attorneys in the private sector and cannot be justified by merely recharacterizing an internal and unadopted legal strategy as an

attempt to make a false statement.

R&R at 28. To do so would diminish the essential role that lawyers play in our republic by preventing them from engaging in the collaborative and

deliberative processes necessary to zealously represent clients, render competent legal advice in politically controversial matters, and provide effective assistance of counsel to unpopular clients. Amicus writes in support of Mr. Clark and urges the Court to recognize the First and Sixth Amendment

implications of Mr. Clark's discipline and to

reject the

Board's recommendation, dismiss the

complaint against him, and not to punish Mr. Clark for internally advocating a controversial and unpopular legal strategy.

ARGUMENT I.

Legal Representation Is Protected by the First Amendment as Core Expressive Activity.

Legal advocacy, particularly when rooted in the expression of political and constitutional values, occupies a central place within the protections of the First Amendment.

In re Primus

, 436 U.S. 412, 413 (1978). As the Supreme Court held in

National Ass

n for Advancement of Colored People (NAACP) v. Button

"litigation

is . . . a means for achieving the lawful objectives of equality of treatment and is thus a form of

political expression

371 U.S. 415, 439 (1963) (emphasis added). Because legal advocacy inherently involves the communication of ideas, arguments, and principles, any government regulation of such conduct must be justified by an interest unrelated to the suppression of expression.

United States v. O

Brien

391 U.S. 367, 377 (1968);

see also Velazquez

, 531 U.S. at 545

47 (r

ecognizing attorneys' constitutional right to present all

reasonable, well-grounded arguments, the Court held that restricting legal analysis limits essential speech necessary for courts to exercise judicial power properly). Moreover, courts have distinguished between speech directed to the court or occurring during a judicial proceeding and speech taking place elsewhere, noting that the former is more circumscribed than the latter.

Gentile v. State Bar of Nev.

, 501 U.S. 1030, 1071

72 (1991). Of course, attorneys are not required to be infallible; they are required to be honest. Indeed, the ethical rules affirm that lawyers

may, in good faith, "argue for the extension, modification, or reversal of existing law."

D.C. Rules of Pro. Conduct R. 3.1. So-

called "professional speech" is n

either a constitutional void nor a separate category of speech.

Nat'l Inst. of Fam. & Life Advocs. v. Becerra

, 585 U.S. 755, 756 (2018). While the state has a greater interest in regulating speech within professional relationships, that authority has limits. As Justice Kennedy made clear in

Gentile

, the fact that attorneys are persuasive, trusted, and well-informed is not a reason to suppress their speech

it is a reason to protect it. 501 U.S. at 1056

57.

"The First Amendment,"

Justice Kennedy observed

, "does not permit suppression of speech because of its power to command assent."

Id.

;

see generally

Erwin Chemerinsky,

Lawyers Have Free Speech Rights, Too: Why Gag Orders on Trial Participants are Almost Always Unconstitutional

, 17 Loy. L.A. Enter. L. Rev. 311, 324 (1997). In sum, disciplining a lawyer for engaging in good-faith legal advocacy simply because the government finds his viewpoint to be fallacious, dangerous, or politically disruptive does not protect the integrity of the profession

it undermines it. Such action not only chills future speech but compromises the adversarial system itself, which depends on the freedom to explore and advance unorthodox legal arguments without fear of reprisal.

II.

Internal Communications Between a Lawyer and Client Are a Protected Subset of First Amendment Expression.

These First Amendment principles apply with even greater force to the private communications between lawyers and their clients. While the First Amendment is

often invoked to protect the lawyer's right to advocate for a client, it also secures the client's reciprocal right to receive

comprehensive information and ideas that comprise legal advice.

Stanley v. Georgia

, 394 U.S. 557, 564 (1969);

Martin v. EPA

, 271 F. Supp. 2d 38, 47 (D.D.C. 2000). Zealous advocacy necessarily requires lawyers to consult with their clients regarding significant decisions, keep them

apprised of developments, convince the court of their client's position, collaborate

with their colleagues, and perhaps most importantly, render candid and meaningful

advice which, oftentimes, includes the "opportunity to persuade to action, not merely to describe facts."

Thomas v. Collins

, 323 U.S. 516, 537 (1945). For these reasons,

is well established that "advice from [an] attorney to [a] client and

. . . advocacy

by the attorney to the courts" is private speech that

the First Amendment protects.

Velazquez

, 531 U.S. at 542

43.

The essence of a lawyer's role lies in speech-

the ability to communicate with and advise his client is indispensable to providing effective representation. Legal representation is not just conduct, but a series of verbal and written expressions imbued with political and ideological significance for the vindication of rights. Under the ABA Model Rules of Professional Responsibility, as well as its D.C. analogue, lawyers are subject to discipline for initiating or defending a proceeding

or raising or contesting an issue therein

without a legal and factual basis that is non-frivolous. Model Rules of Pro. Conduct R. 3.1; D.C. Rules of Pro. Conduct R. 3.1. But what constitutes

a "frivolous" legal position must necessarily be

a high bar, as the Rules expressly permit good-faith arguments for the extension, modification, or reversal of existing law. Model Rules of Pro. Conduct R. 3.1; D.C. Rules of Pro. Conduct R. 3.1. Mere novelty, unpopularity, or the eventual rejection of a legal position does not render a claim

frivolous.

Mitchell v. City of Moore, Okla

., 218 F.3d 1190, 1203 (10th Cir. 2000);

Houston v. Norton

, 215 F.3d 1172, 1174 (10th Cir. 2000).

To hold otherwise would render it altogether impossible for lawyers to zealously advocate for their clients, as they would constantly be at risk of

professional sanction merely for advancing arguments that challenge prevailing norms or push the boundaries of existing law. This high standard underscores the importance of professional judgment and candid deliberation in legal practice. To determine whether a position is frivolous

or, conversely, supported by a good-faith basis in law or fact

attorneys must engage in robust and uninhibited consultation, legal analysis, and strategic dialogue with colleagues and their clients. Indeed, the very process of testing ideas, debating unsettled questions, and refining legal theories within a team or organization is what enables lawyers to fulfill their ethical duties competently and conscientiously. Internal deliberation is a sacrosanct part of a lawyer

duties, for without it, lawyers would be forced to act in isolation, deprived of the critical exchange of ideas necessary to refine legal theories, anticipate objections, and avoid missteps that could render arguments frivolous or counterproductive. Legal judgment is not forged in a vacuum; it emerges through consultation, dissent, and refinement among colleagues who bring different perspectives and expertise to bear on difficult questions. This cooperative process is particularly vital when legal arguments touch on unsettled areas of law, politically sensitive matters, or novel constitutional claims. As Bryan A. Garner, a renowned legal scholar and lexicographer, has

observed, "

[w]hen first working on a writing project, let your madman run loose for

a while."

Bryan A. Garner, The Winning Brief 17 (3d ed. 2014). That is, early

drafting stages often involve creative, unfiltered idea generation

a process that necessarily includes back-and-

forth discussion, questioning, and revision. "Every

brief presents opportunities for creativity

for imaginative approaches that will convey th

e point most effectively."

Id.

at 18. This creativity cannot flourish without a shared, constitutionally protected space for brainstorming and deliberation. In the legal profession

especially within institutional settings

such space is only possible through meaningful collaboration, both among attorneys and between attorney and client. Lawyers routinely engage in forward-looking speech: They draft proposed letters, circulate internal emails, and share preliminary legal theories, strategies, and forward-looking documents with clients and colleagues

all before any final action is taken. These communications often involve exploring legal options, proposing hypothetical strategies, or anticipating future developments. This is not only commonplace in legal practice; it is essential to competent representation and informed decision-making. Courts, too, have spotlighted the unique role that collaboration plays in the legal arena. In

NAACP

for instance, the Supreme Court observed: The Disciplinary Rules in question, which sweep broadly, rather than regulating with the degree of precision required in the context of political expression and association, have a distinct potential for dampening the kind of cooperative activity that would make advocacy of litigation meaningful, as well as for permitting discretionary enforcement against unpopular causes. 371 U.S. at 438.

Such cooperative activity between lawyers and their colleagues, and between lawyers and their clients, is not merely a professional courtesy

it is ethically and constitutionally indispensable. Using the powers of the government to repress a

lawyer's ability to

advocate possible legal avenues, no matter how controversial, is

contrary to the Constitution, which requires that the government respond to

dissenting or unpopular speech or ideas with 'tolerance, not coercion.'"

Perkins Coie LLP v. DOJ

, 783 F. Supp. 3d 105, 121 (D.D.C. 2025)

(citing

303 Creative LLC v. Elenis

, 600 U.S. 570, 603 (2023)), appeal filed, No. 25-5241 (D.C. Cir. July 2, 2025).

III.

The Sixth Amendment

s Guarantee of Effective Counsel Fundamentally Depends on the Client

s Right to Receive Candid Legal Advice.

These First Amendment principles recognized for legal representation buttress each

criminal defendant's

Sixth Amendment right to effective representation.

The Sixth Amendment's guarantee of the right to counsel in criminal

cases has been interpreted by courts to encompass not merely the right to the presence of an attorney, but the right to effective legal representation.

Strickland v. Washington

, 466 U.S. 668, 686 (1984). Effective legal representation requires a

lawyer "to make reasonable investigations" into relevant law or facts.

Id.

at 691.

Although the scope of a "reasonable investigation" varies with the circumstances of

each case, counsel is, at a minimum, obligated to understand the fundamental legal principles at issue, explore known or potentially significant mitigating evidence, and seek out readily available information upon which the prosecution is likely to rely.

Weisheit v. Neal

, 151 F.4th 855, 881 (7th Cir. 2025) (citing

Wiggins v. Smith

, 539 U.S. 510, 527 (2003);

Rompilla v. Beard

, 545 U.S. 374, 385 (2005);

Hinton v. Alabama

, 571 U.S. 263, 274 (2014)). This investigatory process is fully dependent on open channels of communication between lawyers and clients.

Strickland

, 466 U.S. at 690

91;

Greater Newburyport Clamshell All. v. Pub. Serv. Co. of N.H.

, 38 F.2d 13, 21 (1st Cir. 1988). Where an attorney is unable to communicate freely with the client, or the client cannot adequately receive such communication, any resulting breakdown may, in severe cases, give rise to a presumption of ineffective assistance of counsel.

United States v. Soto Hernandez

, 849 F.2d 1325, 1328 (10th Cir. 1988). Accordingly,

"[t]he Sixth Amendment protects the defendant against

intrusions that could inhibit the free exchange of information between attorney and

client."

United States v. Eniola

, 893 F.2d 383, 387 (D.C. Cir. 1990). The Sixth Amendment also requires co-counsels to communicate openly.

Knowles v. Mirzayance

, 556 U.S. 111, 126 (2009). In

Knowles

, the Supreme Court recognized the importance of internal communication between legal colleagues, including

whether the lawyer "discussed the situation with his experienced co-counsel"

as a factor in determining

whether the lawyer's conduct was deficient.

Id.

IV.

Jeffrey Clark's

Proposal of a

"Proof of Concept Letter"

and Legal Approach Constituted Internal Deliberations Protected by the First and Sixth Amendments.

The D.C. Board on Professional Responsibility interprets Mr. Clark's request

that Messrs. Rosen and Donoghue endorse his Proof of Concept letter

after they informed him on December 28 that they disagreed with the strategy and content

as an

attempt to present knowingly false statements

." This conclusion is based on

its finding that Mr. Clark was

prepared to cause the Justice Department to tell a lie about the status of its investigation of an important national issue (the integrity of

the 2020 Presidential election)."

R&R at 6, 71. The Board, as well as Disciplinary Counsel, has already acknowledged that Mr. Clark did not violate any ethical rules by sending the initial email on December 28, 2020.

Id.

at 75. Rather, they contend that because he continued to advocate his position after being told it was incorrect, he violated D.C. Rule of Professional Conduct 8.4(a).

Id.

at 75

77. But both his initial email and subsequent advocacy were part of a single, continuing chain of events

i.e.

, the same deliberative process. And to recharacterize internal deliberations among lawyers

that were never made public

as intentional falsehoods sets a precedent that threatens the First Amendment

rights of all lawyers and clients and jeopardizes the collaborative process essential to legal representation.

In making his recommendations to President Trump and Messrs. Rosen and Donoghue, and in continuing his advocacy for them, Mr. Clark was engaged in internal deliberation with the duly authorized representatives of his client, the Department of Justice, concerning a matter that implicated its legal interests. D.C. Rules of Pro. Conduct R. 1.6(k).

Notably, President Trump and Messrs. Donoghue and Rosen were not only his clients but also his colleagues, from whom he sought advice and authorization to pursue the legal strategy set forth in the draft letter. But the Board instead insists that his internal advocacy was an attempt to deceive, finding that:

Mr. Clark bears no responsibility for the subsequent publication of the

Proof of Concept

letter at the heart of this matter. The record firmly establishes that

the circumstances surrounding the letter's dissemination remain unclear, and

neither the Board nor Disciplinary Counsel allege that Mr. Clark is responsible.

See, e.g.

, Hearing, Vol. 7,

In re Jeffrey Clark

, Bd. Docket No. 22-BD-039 (D.C. Ct. App. Bd. Pro. Resp. Apr. 4, 2024)

("And bear in mind, Mr. Clark never said a word about

any of this publicly. He kept it confidential and private. Somebody else in the meeting leaked it to the New York Times. And that eventually led to where we are

today."

D.C. Legal Ethics Comm.,

Ethics Op. 367: Representation of Client by

Lawyer Seeking Employment with Entity or Person Adverse to Client, or Adversary's

Lawyer; Clarification of Opinion 210

(2014).

This case is not about a professional disagreement over law enforcement policy, the advice to provide to the President, the

quality and thoroughness of the Justice Department's

investigations, or what evidence might have been discovered had the Justice Department conducted additional investigations. Instead, the charges against Respondent focus on the factual assertions. R&R at 5. But if lawyers cannot propose a course of action and summarize it in a draft

"concept"

letter that presupposes the actions will be approved and taken, then they are severely censored in the advice and communications they can share with co-counsels and clients. The facts here indicate that, by circulating the Proof of Concept letter to Messrs. Rosen and Donoghue and inviting their signatures, Mr. Clark was proposing and advocating a course of action. That is, Mr. Clark proposed that the Department consider re-opening or expanding its investigation into election-related concerns and prepared the Proof of Concept letter as a representation of this proposal for internal discussion purposes. Thereafter, having no notice that his attempts to

persuade would be construed as "attempted dishonesty

R&R at 28, under any professional ethics precedents,

he defended his interpretation of the evidence that

The Hearing Committee acknowledges that this type of sanction is a matter of first impression. Hearing Comm. Rep. at 211,

In re

Jeffrey Clarke

, No. 22-BD-039 (Aug. 1, 2024). The First Amendment requires that any regulation restricting speech be sufficiently definite and clear to give a person of ordinary intelligence fair notice of what conduct is prohibited, and to prevent arbitrary or discriminatory enforcement. Laws that are impermissibly vague in regulating speech violate both

led him to draft the letter. To interpret these internal communications as

"attempted dishonesty"

threatens every lawyer with punishment for proposing a course of action and advocating it in a forward-looking concept letter. The Board focuses on the fact that

Mr. Clark "[c]ontin[ued] to advocate that

the Justice Department should send the letter after having been told that it contained

misrepresentations." R&R at 3. But

the constitutional rights implicated here, in a case involving non-public, internal attorney deliberations, mandate a generous

interpretation of the lawyer's conduct

under the circumstances. All the discussions at issue occurred in a very brief time period. Events were hurried, facts and information were fluid, and opinions were mixed. The attorneys within the Department had different information and vantage points. The degree of inquiry and fact gathering which could be deemed to

constitute an "investigation" in these

circumstances is subject to reasonable disagreement. Mr. Clark maintained that he had received reports of election irregularities that he believed might have affected the outcome of the election. R&R at 25. For additional context, post-election disputes have become commonplace since Vice President Gore

challenge to the Florida vote count in 2000 and challenger Al Franken

and Senator Norm Coleman

disputed Minnesota vote count following the 2008 election.

See, e.g.

the Free Speech Clause and the Due Process Clause.

See, e.g.

Smith v. Goguen

, 415 U.S. 566 (1974);

Grayned v. City of Rockford

, 408 U.S. 104 (1972).

Bush v. Gore

, 531 U.S. 98 (2000);

Coleman v. Franken

, 767 N.W.2d 453 (Minn. 2009). The upshot is that lawyers should be permitted to

internally

hold, advocate, and debate differing opinions over how much weight and significance to assign to each individual piece of evidence that is brought to their attention, especially in high-pressure, time-sensitive contexts like the days following a national election. Mr

. Donoghue testified that the Department had received "many allegations

related to instances in which states were not following their own election laws and procedures

-such as, procedures for verifying signatures on absentee ballots."

In re

Jeffrey Clarke

, No. 22-BD-039, Hearing Comm. Rep. at 25. While Mr. Donoghue did not believe such irregularities to be outcome-determinative, Mr. Clark did. Accordingly, he sought to convince President Trump and Messrs. Rosen and Donoghue that the Ligon Report and the interview with the largest bail bondsman in Georgia were dispositive. R&R at 2. This is what lawyers are routinely called upon to do: They debate the weight of the evidence. When a law clerk drafts a judicial opinion or a lawyer circulates a draft client letter, a conversation between the parties ensues. They each come to the table with different theories, deliberate, and then make revisions as needed. Nobody would fault a lawyer for not immediately capitulating to his colleague or client when there is a disagreement. No part of this deliberative process is unique to Mr. Clark, but the internal deliberations of all attorneys and clients would be jeopardized if lawyer

internal

communications were exposed to public

rebuke and subject to the Board's political

sensitivities. To stifle the internal exchange of legal information in the public arena would lead to exactly what the

NAACP

Court feared:

The dampening of the kind of cooperative activity

that make[s] advocacy of litigation meaningful."

371 U.S. at 438. Where professional opinion is divided, particularly on politically controversial or unsettled issues, the First Amendment safeguards the right to dissent. For instance, in

Høeg v. Newsom

, 652 F. Supp. 3d 1172, 1118 (E.D. Cal. 2023), physicians sued California officials over Assembly Bill 2098, which authorized the

Medical Board of California to discipline doctors for disseminating COVID-19

related "misinformation or disinformation" that departs from "contemporary

scientific consensus.

" Finding for the physicians, the court emphasized that "COVID

-19 was a quickly evolving area of science that in many aspects eluded

consensus."

Similarly, in the immediate aftermath of the 2020 election, what

constituted an "investigation

" "misinformation

"misrepresentation

"disinformation," or "consensus" was not at all clear.

Indeed, it is still debated today, nearly five years afterwards. And even if Mr. Clark did conduct only

a "minimal investigation," as the Board

concedes, this did not magically render his theory unprotected or

frivolous

, as frivolity requires

basis of law or fact. D.C. Rules of Pro. Conduct R. 3.1.

After his proposed legal approach was rejected, Mr. Clark still could not have possibly misrepresented the D

epartment of Justice's

policy within the Department itself. Had he sent the letter to anybody outside the Department of Justice, it would have fallen within a more narrowly defined scope of the law and likely have been subject to heightened scrutiny.

Gentile

, 501 U.S. at 1071. However, he did not. In both the email and the attached letter, Mr. Clark wrote:

"FOR INTERNAL SJC USE ONLY DO NOT DISTRIBUTE."

R&R at 14. And in defending his position after the fact, he never made any indication that he would publicly disseminate the letter without meeting the requisite requirements

either obtaining Messrs. Rosen

and Donoghue's signatures or

being elevated to a role that gave him the authority to send it without their signatures. Mem. Op. Granting Mot. to Remand at 10,

In re Jeffrey B. Clark

, No. 22-mc-0096, (D.D.C. July 31, 2023); R&R at 15.

Mr. Clark's efforts to promote his letter

inside the agency necessarily involved defending the credibility of the evidence that led him to draft the letter in the first place. The ultimate denial of authorization to send the letter because his colleagues and client agency disagreed with the accuracy and proposed strategy does not negate the protected status of this speech or the need for lawyers to have

breathing

space"

to speak to their clients and seek advice from their colleagues.

Garrison v.

None of this is to suggest that a lawyer whose words constitute an element of a criminal offense or who advocates a crime will find refuge in the First Amendment.

See

e.g.

United States v. Freeman

761 F.2d 549, 551 (9th Cir. 1985)

Louisiana

, 379 U.S. 64, 74 (1964). Likewise, t

he Board's recommended punishment of internal deliberation, if

accepted, would hamper lawyers in fulfilling their Sixth Amendment obligations to their clients. Some attorney proposals for legal arguments would be chilled for fear of disciplinary action. Moreover, a lawyer cannot be expected to investigate counter-theories when he knows that if his investigation into an unpopular case or theory

goes "too far," as determined

ex post facto

, he can be subject to discipline. Internal communications between a lawyer and his client, or between a lawyer and his colleague, involve more than a curt statement of opinion followed by immediate withdrawal of that opinion. But that is precisely what the Board is demanding here: Once Mr. Clark was told his colleagues believed he was wrong, he was, according to the Board, legally required to cease any further internal advocacy, even if he had reason to believe that his interpretation was the correct one. This is akin to telling a

lawyer that "reasonable consultation" with a client who wishes to call a particular

witness to establish a fact must cease the moment the client first disagrees with the

lawyer's advice based on a subjective disagreement with the fact to be established. (holding that words may constitute a criminal offense even if they "spring

from the

anterior motive to effect political and social change");

Giboney v. Empire Storage & Ice Co.

, 336 U.S. 490, 502 (1949)

It has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.

"). In the case at hand, however,

the Board is punishing

Mr. Clark for "attempted dishonesty," and not for an alleged crime.

D.C. Rules of Pro. Conduct R. 1.2

. That does not constitute "reasonable consultation."

A lawyer working in fear of sanction for defending a minority position is unable to provide candid advice to his client. As a result, his client will be unable to receive vital information, leading to catastrophic First and Sixth Amendment infringements. Amicus maintains that post-hoc judgments over the merits of

Mr. Clark's

misgivings about the integrity of the election ought not determine the outcome of this matter. Rather, we ask the Court to consider the profound constitutional rights

at stake in Mr. Clark's internal debates and deliberations with his colleagues.

Regardless of the merits or demerits of his strategy, both the Proof of Concept letter and the legal strategy, as well as the subsequent conversations, were manifestations of disagreements between colleagues. Second-guessing and disciplining lawyers for this kind of back-and-forth dialogue will undoubtedly inhibit

them from "undertak[ing] the considerable burden (and sometimes risk) of

vindicating . . . rights through case-by-

case litigation."

Virginia v. Hicks

, 539 U.S. 113, 119 (2003).

The Board says that sanctioning Mr. Clark will "discourage dishonesty." R&R at 39

. But in reality, it will discourage candid legal investigation and discussion of controversial legal and political positions in favor of post-hoc, and politically correct, third-party judgments by decision-makers whose intent may be to stifle dissenting or minority viewpoints, which ultimately undermines both client interests and the free exchange of ideas essential to effective legal representation.

CONCLUSION

For the reasons discussed above, the Board should not disbar, suspend, or otherwise sanction Mr. Clark, and all charges against him should be dismissed. /s/ Lee E. Goodman_______________ Lee E. Goodman (DC Bar 435493) DHILLON LAW GROUP, INC. 2121 Eisenhower Avenue, Suite 608 Alexandria, VA 22314 [email protected] T: (415) 433-1700

Counsel for Amicus Curiae Citizens United

October 27, 2025

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of D.C. App. R. 29(a)(4) and D.C. App. R. 32 because,

according to Microsoft Word's word count

feature, this brief is 24 pages, with 5,535 words excluding the parts of the brief exempted by D.C. App. R. 32(f). 2. This brief complies with the typeface and type-style requirements of D.C. App. R. 32(a)(5) and (6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in Times New Roman 14-point font. Dated: October 27, 2025 /s/ Lee E. Goodman_______________ Lee E. Goodman (DC Bar 435493) DHILLON LAW GROUP, INC. 2121 Eisenhower Avenue, Suite 608 Alexandria, VA 22314 [email protected] T: (415) 433-1700

Counsel for Amicus Curiae Citizens United

CERTIFICATE OF SERVICE

Pursuant to D.C. App. R. 25, I hereby certify that, on October 27, 2025, I caused the foregoing

Brief Amicus Curiae Citizens United

to be filed electronically with the Clerk of the Court for the Court of Appeals for the District of Columbia by using the CM/ECF system, which automatically sent a notice of electronic filing to all counsel of record. Dated: October 27, 2025 /s/ Lee E. Goodman_______________ Lee E. Goodman (DC Bar 435493) DHILLON LAW GROUP, INC. 2121 Eisenhower Avenue, Suite 608 Alexandria, VA 22314 [email protected] T: (415) 433-1700

Counsel for Amicus Curiae Citizens United

Citizens United published this content on October 30, 2025, and is solely responsible for the information contained herein. Distributed via Public Technologies (PUBT), unedited and unaltered, on October 30, 2025 at 15:43 UTC. If you believe the information included in the content is inaccurate or outdated and requires editing or removal, please contact us at [email protected]

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