I’ll Take My Grand Jury Materials with a Hint of Impeachment

Last Friday, July 26, the House Judiciary Committee filed an application with the U.S. District Court for the District of Columbia seeking release of certain grand jury materials related to the report and investigation of former Special Counsel Robert S. Mueller III. The committee contends that the Mueller report “provided Members of Congress with substantial evidence that the President of the United States repeatedly attempted to undermine and derail a criminal investigation of the utmost importance to the nation.” Application at 1. Accordingly, “the House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity– approval of articles of impeachment.” Id. 

Some may view this, from a political perspective, as “impeachment lite” (Twitter wags had a variety of other terms like “impeachment-tinged” and “impeachment-infused”). From a legal perspective, however, I think this is probably good enough, at least for this particular controversy. Here’s why.

The committee’s primary argument is that the court should authorize the release of the grand jury information pursuant to Fed. R. Crim. P. 6(e)(3)(E), which provides “[t]he court may authorize disclosure of a grand jury matter . . . (i) preliminarily to or in connection with a judicial proceeding.” This provision is applicable here, the committee contends, because it is conducting an investigation to determine whether to recommend articles of impeachment with respect to the president. Application at 30-31. It bears emphasis that the committee does not contend this provision applies to congressional investigations outside the context of impeachment, nor would there be any basis for it to do so.

As we have discussed, controlling authority in the D.C. Circuit establishes that an impeachment proceeding qualifies as a “judicial proceeding” within the meaning of Fed. R. Crim. P. 6(e)(3)(E)(i). Specifically, a Senate impeachment trial is judicial in character and a House impeachment inquiry is therefor preliminary to or in connection with a judicial proceeding for these purposes. Application at 28-29.

To be sure, there is no Supreme Court authority on point, and it is possible that the Court would conclude that the term “judicial proceeding” refers to a proceeding conducted by the judiciary, not merely a proceeding that is judicial in character. (Of course, a Senate impeachment trial of the president is presided over by the chief justice, somewhat blurring this distinction.). However, if the Court were to reject the committee’s position in this respect, I strongly suspect that it would accept its alternative argument (currently foreclosed in the D.C. Circuit) that a federal court retains inherent authority to disclose grand jury materials under these circumstances. See Application at 40-41. I do not believe the Supreme Court would hold that there is no legal mechanism by which grand jury material relevant to impeachment can be transmitted to the House (or Senate), a conclusion that would be in considerable tension with the Constitution’s preference (at least) for impeachment rather than indictment of a sitting president. See, e.g., Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2158 (1998) (citing with approval President Nixon’s argument that “[w]hatever the grand jury may claim about a President, its only possible proper recourse is to refer such facts, with the consent of the court, to the House and leave the conclusions of criminality to the body which is constitutionally empowered to make them”); see also id. at 2156 (“any information gathered with respect to executive branch officials that could reflect negatively on their fitness for office should be disclosed to Congress”).

The more difficult issue for the committee is establishing that disclosure of grand jury materials in these circumstances would be for purposes of impeachment, rather than simply for general oversight. As I have written elsewhere, the committee would clearly be in a stronger position if the House had formally initiated an impeachment inquiry. That being said, nothing in the language of Rule 6(e)(3)(E)(i) expressly requires the formal initiation of any particular proceeding and to the contrary the rule suggests that the disclosure may occur before (“preliminarily to”) such initiation.

Here it is worth noting that while it is the Senate impeachment trial that has been held to be a “judicial proceeding” for these purposes, there is also a strong argument that the House’s exercise of its power of impeachment likewise constitutes a judicial proceeding. Certainly the House’s power is judicial, rather than legislative, in nature. It is possible, however, to argue that the House’s proceeding are less judicial than the Senate’s because the latter performs the adjudicative function of a criminal court while the former performs the investigative function of a grand jury. In any event, it probably makes little difference to the outcome of the committee’s application because in either case the committee must persuade the court that its current investigation is sufficiently tied to the impeachment process.

To meet this burden, the committee points to the following: (1) impeachment falls within the committee’s jurisdiction and articles of impeachment (including in the current congress H. Res. 13, a resolution calling for the impeachment of President Trump) are invariably referred to the committee; (2) the committee has repeatedly indicated in various ways, such as statements by the chairman and a contempt report adopted by vote fo the committee, that it is assessing whether to recommend articles of impeachment with respect to the president; (3) the House Rules Committee, in its report accompanying H. Res. 430, similarly explained that the committee was considering whether to recommend such articles of impeachment; and (4) the full House voted to adopt H. Res. 430, which confirms the committee’s investigatory authority with regard to the Mueller report and related matters and expressly authorizes it to continue its efforts to obtain information, including by filing an application for grand jury material pursuant to Fed. R. Crim. P. 6(e)(3)(E). This authorization by the House implicitly recognizes that the committee is seeking grand jury information for impeachment purposes since, as mentioned previously, there is no other basis upon which the committee could avail itself of this provision.

While there are no guarantees in litigation, in my view this is a pretty strong case. Given the language of the rule and the past flexible practice in the context of impeachment, the committee should prevail in its application. Whatever the outcome, though, it will be interesting to see how the Justice Department responds.

Emoluments Suits Status: Keep an Eye on Blumenthal v. Trump

The Fourth Circuit recently issued its decision in District of Columbia v. Trump (the emoluments lawsuit brought by DC and Maryland against President Trump) and, not surprisingly, the court ordered the case dismissed for lack of standing. Equally unsurprising was the court’s criticism of the district judge, who it found had committed a “clear abuse of discretion” in refusing to certify the case for appeal.

The court’s reasoning with respect to the plaintiffs’ standing theory (namely that these jurisdictions or their citizens are suffering competitive injury from the Trump Hotel in DC) largely tracks my earlier observations. This standing theory fails because (1) it is sheer speculation whether Trump’s alleged violations of the emoluments clauses inflict any injury at all, i.e., Trump’s relationship with the Trump Hotel may help its competitors as much or more than it hurts them; and (2) these competitive interests are not in any event within the zone of interests protected by the emoluments clauses.

The court gives short shrift, however, to one theory that seemed more plausible to me. The domestics emoluments clause appears designed to ensure that no state exercises undue influence over the president. To the extent Trump has accepted prohibited emoluments from certain states, it is arguable that other states (such as Maryland) have suffered an injury within the zone of interests protected by the clause. The Fourth Circuit rejected this theory as an attempt to assert a “generalized grievance,” but it did not directly confront the proposition that the clause protects the states qua states, not just the general public.

What does this mean for the prospects for the three emoluments lawsuits against Trump? Although the plaintiffs may seek further review, D.C. v. Trump is unlikely to go anywhere now. The other suit predicated on a competitive injury theory, CREW v. Trump, was dismissed by the district court and is now pending before the Second Circuit. It seems unlikely to make it to the discovery stage either, at least anytime soon.

The case to keep an eye on is Blumenthal v. Trump, which was filed by Democratic members of Congress in federal court in D.C. It presents distinct standing issues. The plaintiffs claim that they have suffered an institutional injury due to Trump’s failure to present (alleged) foreign emoluments to Congress for its consent under the Foreign Emoluments Clause. Judge Sullivan accepted this theory and refused to dismiss the case for lack of standing. This decision, however, is questionable at best under existing Supreme Court precedent, particularly in light of the Court’s most recent ruling on legislative standing.

The Justice Department has sought a writ of mandamus from the D.C. Circuit to prevent Judge Sullivan from moving forward with discovery in the Blumenthal case. It has indicated that if it does not receive a decision from the appellate court by July 22, it may seek relief from the Supreme Court, (hat tip: Seth Barrett Tillman). Should the Supreme Court agree to hear the case, it could use the opportunity to address broader questions of legislative standing that remain unresolved, which could affect the Ways and Means committee lawsuit to obtain Trump’s tax returns and other contemplated House litigation against the administration.

What Does OLC Really Mean By “Testimonial Immunity”?

Following up on my first post on the Office of Legal Counsel’s May 20, 2019 opinion regarding the “testimonial immunity” of senior presidential advisers, let’s turn to OLC’s claim that “for nearly five decades” it has advised that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.” See 5-20-19 OLC Opinion at 1.

Today I want to ask what this advice actually means. After all, it is not at all clear that OLC believes Congress may “constitutionally compel” anyone in the executive branch to provide any information, whether in the form of testimony or documents, regarding their official duties or anything else. Although it would concede that Congress has the constitutional right to demand information needed for legislative and oversight purposes, OLC would deny that Congress ever has the right to “compel” the executive branch to produce such information, at least where the president has asserted executive privilege.

Perhaps OLC would offer the distinction that the president is constitutionally obligated to provide information to Congress unless a valid constitutional basis exists for withholding it; thus, he is “compelled” to provide information where no such basis exists, even though he is the final decisionmaker as to whether or not information should be withheld. In the case of senior presidential advisers, however, the president has complete discretion as to whether to allow them to testify and thus is never “compelled” to do so.

There are a couple problems with this distinction. First, even in OLC’s theory, the immunity of presidential advisers is limited. It does not apply to everyone who works in the White House, but only the president’s “senior” or “immediate” advisers. It does not apply to those with statutory or operational responsibilities. It does not apply to testimony about “personal affairs,” a term which OLC does not define but which, we will see, includes at least matters involving misuse of the adviser’s public position. Thus, even under OLC’s theory, it would seem the president is “compelled” to provide testimony of his advisers under certain circumstances.

More fundamentally, however, OLC and the executive branch maintain that all congressional demands for information are subject to a constitutionally-mandated accommodation process, which consists of a “back-and-forth process under which each branch is constitutionally obligated to negotiate in good faith, articulate with particularity their legitimate institutional needs and interests, and weigh the legitimate needs and interests of the other branch.” This is “not simply an exchange of concessions or a test of political strength” but “an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”

Congressional demands for testimony from senior presidential advisers are not exempt from this accommodation process. OLC acknowledges that “Presidents have occasionally made senior advisers available to accommodate congressional requests, even while defending their legal authority to decline such requests.” 5-20-19 OLC Opinion at 12. During the 2008 litigation in which the House Judiciary Committee attempted to compel former White House counsel Harriet Miers to testify, the Justice Department stressed that the committee was trying to end run the accommodation process. See, e.g., Reply in Support of Defendants’ Motion to Dismiss at 47 (June 12, 2008) (“rather than relying on good faith negotiations and cooperation (including the President’s offer that Ms. Miers appear for an interview), the Committee has invoked this Court’s jurisdiction to judicially compel Ms. Miers’s attendance and sworn testimony at a public hearing”).

It is hard to see how one can square OLC’s understanding of the accommodation process with a claim that presidential advisers are “absolutely immune” from testifying before Congress. If Congress has a “legitimate need” for the testimony of a senior presidential adviser (e.g., because the adviser is an essential fact witness to wrongdoing) and there is no principled reason to withhold the information (e.g., because of the executive’s longstanding position that executive privilege will not be invoked to conceal evidence of criminal or unlawful wrongdoing by executive officials), it would seem that the president would be obligated to permit the adviser to testify. Thus, when Presidents Nixon and Reagan permitted senior advisers to testify about Watergate and Iran-Contra, respectively, they were not merely engaging in acts of presidential grace but carrying out their constitutional obligations.

Any other interpretation would create bizarre inconsistencies in the executive branch position. For example, suppose Congress has a legitimate legislative need for information known only to a senior presidential adviser. If the adviser wrote the information down in a document, the executive branch would have a constitutional obligation (under some circumstances) to provide the document to Congress. But if the same information were only in the adviser’s head, there would be no constitutional obligation to acknowledge the legislative need for the information and any accommodation would be purely a matter of political bargaining. This simply makes no sense.

To be sure, OLC would deny that Congress can use the methods of testimonial compulsion (inherent contempt, criminal contempt or civil litigation) to force senior presidential advisers to testify. However, as already noted, OLC would take the same position with regard to any other type of testimony or evidence if the president has invoked executive privilege. This was made clear in the government’s briefs in the Miers case:

At no time during the long history of interbranch negotiations and accommodations has a court ordered an Executive Branch official—let alone one of the President’s senior advisers—to testify before Congress, nor has the Executive Branch been required by court order to produce documents or a privilege log to Congress. This uniform past practice also has been followed with respect to congressional demands that senior White House advisers appear before congressional committees to justify the President’s decisions. Although such advisers have, from time-to-time, appeared before Congress, at no time in the Nation’s history has a court ordered a senior White House adviser to testify as a result of a congressional subpoena.

Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and in Opposition to Plaintiff’s Motion for Partial Summary Judgment on Counts I and II at 9 (May 9, 2008).

Of course, if the executive branch is wrong about the justiciability of executive-legislative information disputes, OLC would want its absolute immunity argument available as a backup. But the justification for absolute immunity is premised on the notion that without such immunity Congress would routinely use its power to compel the appearance of key White House officials. If the argument is only relevant in judicial proceedings to compel appearance, it is not necessary because courts will prevent any abuse and will not order senior White House aides to testify unless there is a legitimate legislative need for the information.

In short, the only way OLC’s position makes sense is if one understands the “immunity” of senior presidential advisers to be a prophylactic rule or policy asserted by the executive branch in order to keep senior White House officials from having to testify before Congress as a routine matter. Because in most cases their testimony will be largely if not entirely protected by executive privilege, such a policy protects legitimate executive branch interests and is generally accepted by Congress as a matter of comity.

As we will see in my next post on this subject, this is also the best way to interpret OLC’s position on this issue for most of the “nearly five decades” it has offered advice on it.

 

“Its Weird Being in an Organization that is Less Popular than Colonoscopies and Nickelback”

So said yesterday Representative Derek Kilmer (D-WA), the chair of the Select Committee on the Modernization of Congress, a new House committee  created at the beginning of the 116th Congress by a vote of 418-12. It is a bipartisan committee with 12 members equally divided between Democrats and Republicans. Kilmer’s vice-chair is Representative Tom Graves (R-GA).

The select committee’s mission is to fix Congress so that it can be at least as popular as Nickelback and as useful as colonoscopies. More precisely, the House charged it with studying and developing “recommendations on modernizing Congress,” including recommendations on seven specific topics:

      1. rules to promote a more modern and efficient Congress:
      2. procedures, including the schedule and calendar;
      3. policies to develop the next generation of leaders;
      4. staff recruitment, diversity, retention, and compensation and benefits;
      5. administrative efficiencies, including purchasing, travel, outside services, and shared administrative staff;
      6. technology and innovation; and
      7. the work of the House Commission on Congressional Mailing Standards.

In order to formally adopt a recommendation, two-thirds of the select committee’s members must agree to it.

The select committee has a limited lifespan. It is required to issue a final report by the end of the year and will end its existence (barring further action by the House) on February 1, 2020. It is authorized to make recommendations on a rolling basis and is supposed to issue interim status reports every 90 days.

There is no shortage of ideas for the select committee to consider. LegBranch.org has created this page with an excellent compilation of  proposals and resources that will be useful for the committee and others interested in congressional reform. I have a few ideas myself (see, for example, here and here). But first the committee has to get started. As of yet, it has not held or scheduled any hearings, nor has it apparently hired any staff.

Chairman Kilmer made his remarks at a Bipartisan Policy Center event yesterday (his discussion with Michele Stockwell of BPC starts at about the 12 and a half minute mark on the video). Not a great deal of news in the discussion. I was interested to know that he wants to look at best practices from the state legislatures. He is also not a big fan of the motion to recommit, though I doubt there will be any bipartisan agreement on reforming that procedure.

But in any event, nothing can happen until the select committee gets going. Until then, colonoscopies and Nickelback will keep extending their lead.

Impeachment or Indictment: What If the President Actually Shoots Someone on Fifth Avenue?

Since the subject of my last post turns out to be somewhat hypothetical, let’s turn to another hypothetical that is often invoked to show that it must be possible to indict (and prosecute) a sitting president for some crimes. Here is how Professor Larry Tribe put it recently:

Nearly everyone concedes [a prohibition on indicting the president] would have to permit exceptions. The familiar hypothetical of a president who shoots and kills someone in plain view clinches the point. Surely, there must be an exception for that kind of a case: Having to wait until the House of Representatives impeaches the alleged murderer and the Senate removes him from office before prosecuting and sentencing him would be crazy.

CNN Anchor Erin Burnett also raised the hypothetical of a murderous president during a January 3, 2019 debate between Norm Eisen (representing the “pro-indictment” or “anti-immunity” position) and David Rivkin (representing the “pro-immunity” position):

BURNETT: Let me interject. The president once famously said I could shoot somebody on Fifth Avenue, we’re not even talking about Russian conspiracy. I could shoot someone on Fifth Avenue. You’re saying if he did that, if he murdered somebody he still above the law, still can’t indict him?

RIVKIN: No, he’s not above the law. He can’t be indicted for murder. There’s only one Constitution proper way to deal with an aberrant president. And that’s what the framers intended, beside from elections. And between elections, you got the impeachment process which features political accountability.

* * *
BURNETT: Norm, you heard David. Even in murder, he would put it to the political process of impeachment. Not indict somebody for murder?

EISEN: The murder example explains why this is so wrong, Erin.

You can watch the video here.

This is not a new hypothetical. In fact, it was raised as early as September 26, 1789, when Senator William Maclay entered into an argument with Vice-President John Adams, Senator Oliver Ellsworth and others who believed the president could only be impeached, not indicted. Maclay summarized the discussion:

I put the case: “Suppose the President committed murder in the street. Impeach him? But you can only remove him from office on impeachment. Why, when he is no longer President you can indict him. But in the meantime he runs away. But I will put up another case. Suppose he continues his murders daily, and neither House is willing to impeach him?” Oh, the people would arise and restrain him. “Very well, you will allow the mob to do what legal justice must abstain from.” Mr. Adams said I was arguing from cases nearly impossible. There had been some hundreds of crowned heads within these two centuries in Europe, and there was no instance of any of them having committed murder. Very true, in the retail way, Charles IX of France excepted. They generally do these things on a great scale. I am, however, certainly within the bounds of possibility, though it may be improbable.

William Maclay, Journal of William Maclay 166-67 (E. Maclay ed. 1890), quoted in Impeachment or Indictment: Is a Sitting President Subject to Compulsory Criminal Process?, Hearing Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Senate. Comm. on the Judiciary, 105thCong., 2d Sess., at 41-42 (1998) (hereinafter the “1998 Hearing”) (testimony of Eric M. Freedman).

You can imagine this passage being read by Erin Burnett, complete with furrowed brow and skeptical expression. (What can I say? I’m easily amused.)  Continue reading “Impeachment or Indictment: What If the President Actually Shoots Someone on Fifth Avenue?”

Congressional Liaison Offices of Selected Federal Agencies

So I am cleaning out my papers and come across a CRS report from 2005 entitled “Congressional Liaison Offices of Selected Federal Agencies.” This isn’t something that I am likely to have use for, but I still feel obligated to make sure that there is a current version available on the internet before I throw it away. And guess what? There is. Even better, its dated August 10, 2017. So on the off-chance that I ever need to find the number for a congressional liaison office, I am bookmarking it here.

And now you can throw away your hard copy too.

Seth Barrett Tillman on the Relationship Between the Origination Clause and Recess Appointment Clause Cases

Professor Tillman sends the following thoughts:

I expect one or more, if not all of the Supreme Court’s four liberal members to affirm the DC Circuit’s decision in Noel Canning. The primary issue in Noel Canning is not whether or not the Senate was in recess – but who or what institution gets to decide whether or not the Senate was in recess. Does the Senate make that call or do the President and the courts? In other words, once the Senate has flagged in the traditional way in its traditional records whether or not it is in session or in recess, does anyone (including the President) get to look beyond or behind the record created by the Senate. The President’s position is that the President and the courts are in a better position to make the call than the Senate.

The Origination Clause challenge to the PPACA, which is now making its way through the lower courts, poses a very similar (if not precisely the same) issue. The enrolled bill enacting the PPACA expressly records that the bill originated in the House, not the Senate. The plaintiffs in the Origination Clause case take the position that the courts should ignore the joint determination of the House and Senate in regard to house of origin, in spite of the fact that the relevant constitutional actors have made a final determination using their traditional records in the traditional way. Here too, plaintiffs say the courts could and should look behind the official House-Senate-created-and-verified record.

When is the Senate in recess?

      When the Senate’s records state that the Senate was in recess.

When has a bill originated in the House?

      When the enrolled bill enacting the statute records that the bill originated in the House.

After all, with the demise of the filibuster, the scope of the President’s recess appointment power matters much less. So if the Supreme Court wants to reverse Noel Canning, then “Go ahead, make my day.”

 

Judge Griffith Will Be Delivering The Leventhal Lecture This Tuesday

This Tuesday, November 15, from 12 pm to 2 pm, the Administrative Law and Agency Practice Section of the D.C. Bar will host the Annual Harold Leventhal Lecture. Our speaker will be the Honorable Thomas B. Griffith of the U.S. Court of Appeals for the D.C. Circuit. Judge Griffith will speak on “Congress in the D.C. Circuit.”

Judge Griffith brings a unique perspective to this topic. As we have discussed, relatively few federal judges have had prior legislative experience. Judge Griffith, however, is certainly the only federal judge to have served as the chief legal officer of either chamber of Congress. From 1995 to 1999, he served as Senate Legal Counsel, during which he advised the Senate on numerous legal matters of great significance, including the impeachment trial of President William J. Clinton.

I will be introducing Judge Griffith on behalf of the Administrative Law Section. Further details and registration information may be found here.

Article V and the “Runaway Convention”

Article V requires Congress, “on the Application of the Legislatures of two thirds of the several States,” to “call a Convention for proposing Amendments.” This process for proposing constitutional amendments has never been used, in large part because of fears that it would lead to a “runaway convention.” The exact definition of a runaway convention depends on whom you ask, but most often it refers to a convention that proposes an amendment beyond the scope of what the states contemplated when they applied for the convention in the first place. The term also raises the specter of a radical and unexpected constitutional change, such as a proposal to repeal the Bill of Rights or the like.

My article on the subject, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765 (Spring 2011) appears in the Tennessee Law Review’s symposium issue on Article V conventions. I evaluate the risks of a runaway convention in light of the constitutional text, structure and purpose of Article V and suggest that these risks are much smaller than often suggested. I also suggest additional safeguards that can be put in place to further minimize any risk of a runaway convention.

One safeguard of particular relevance to this blog would be for the House or Senate (or both) to adopt a rule that would prohibit submitting an out of scope amendment to the states for ratification. Before an amendment proposed by a convention may be ratified by the states, Congress must select the method of ratification (i.e., whether the amendment will be ratified by state legislatures or by state conventions). If the proposed amendment is constitutionally invalid, Congress need not (and indeed should not) submit it to the states for ratification.

By adopting a rule that an out-of-scope amendment will not be submitted to the states for ratification, the House and/or Senate could do a great deal to calm fears of a runaway convention and thereby empower the states to exercise their Article V powers as the Framers intended. Of course, Congress may be reluctant to take this step for the same reasons that the Framers provided for the Article V convention in the first place- Congress has no desire to facilitate adoption of the type of amendments that the states are likely to propose. The phrase “term limits” comes to mind.

This weekend there will be a conference at Harvard Law School to discuss the Article V convention process. I will be having a discussion/debate with Professor Mary Margaret Penrose regarding the runaway convention. Professor Penrose’s response to my article may be found here. My brief reply (imaginatively entitled “A Brief Reply to Professor Penrose”) can be found here.

 

 

 

The Honorable Charles Clark

Charles Clark was nominated to the U.S. Court of Appeals for the Fifth Circuit on October 7, 1969, and he was confirmed eight days later.  Such a speedy confirmation would be unthinkable today, although legend has it that Senator Eastland helped the process along by scheduling the vote when potential opponents were otherwise occupied.  The story as I heard it was that the more liberal members of the Senate were attending an Earth Day event on the day of the vote, but it is more likely (assuming the story is true) that they were participating in Moratorium Day, a Vietnam War protest that took place on October 15, 1969.

Judge Clark became the chief judge of the Fifth Circuit in 1981, and served in that capacity until 1992, when he retired from the bench.  Upon the occasion of his retirement, Rodney Smolla, Dean of the William & Mary Law School and one of the Judge’s former clerks, wrote this fitting tribute: “At a time in the history of the profession in which lawyers and laymen alike are tempted to dismiss our judicial system as corrupt and cynical, Judge Clark stood out as immediate and irrefutable evidence that all is not hopeless:  Here is a lawyer in a position of power and influence who is compassionate, diligent, honest and thoroughly professional.  Here is a lawyer’s lawyer, a judge’s judge, a clerk’s judge.”

I had the privilege of clerking for Judge Clark during the 1985-86 term.  This probably was not the Judge’s favorite clerkship year, as none of his clerks were hunting or fishing enthusiasts.  But for me the year is full of warm memories of Judge Clark: sitting around the conference table as we discussed cases, observing the Judge’s incisive but unfailingly courteous questioning of counsel at oral argument, driving him back to Jackson from New Orleans in my Dodge Daytona (which was thankfully able to make it without one of its too frequent breakdowns).  Everything that Dean Smolla wrote was very true.  Judge Clark was the very model not only of a judge but of a Southern gentleman.

Judge Clark passed away on March 6, 2011.  He will be sorely missed on earth, but we can take comfort that he was a man of faith, who today is reaping the rewards of that faith.