[House Report 117-200]
[From the U.S. Government Publishing Office]


                                             House Calendar No. 53

117th Congress }                                          { Report 
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                          { 117-200

======================================================================
 
RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES FIND JEFFREY 
  BOSSERT CLARK IN CONTEMPT OF CONGRESS FOR REFUSAL TO COMPLY WITH A 
SUBPOENA DULY ISSUED BY THE SELECT COMMITTEE TO INVESTIGATE THE JANUARY 
                6TH ATTACK ON THE UNITED STATES CAPITOL

                                _______
                                

  December 1, 2021.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Thompson of Mississippi, from the Select Committee to Investigate 
  the January 6th Attack on the United States Capitol, submitted the 
                               following

                              R E P O R T

    The Select Committee to Investigate the January 6th Attack 
on the United States Capitol, having considered this Report, 
reports favorably thereon and recommends that the Report be 
approved.
    The form of the Resolution that the Select Committee to 
Investigate the January 6th Attack on the United States Capitol 
would recommend to the House of Representatives for citing 
Jeffrey Bossert Clark for contempt of Congress pursuant to this 
Report is as follows:
    Resolved, That Jeffrey Bossert Clark shall be found to be 
in contempt of Congress for failure to comply with a 
congressional subpoena.
    Resolved, That pursuant to 2 U.S.C. Sec. Sec.  192 and 194, 
the Speaker of the House of Representatives shall certify the 
report of the Select Committee to Investigate the January 6th 
Attack on the United States Capitol, detailing the refusal of 
Jeffrey Bossert Clark to produce documents or answer questions 
during a deposition before the Select Committee to Investigate 
the January 6th Attack on the United States Capitol as directed 
by subpoena, to the United States Attorney for the District of 
Columbia, to the end that Mr. Clark be proceeded against in the 
manner and form provided by law.
    Resolved, That the Speaker of the House shall otherwise 
take all appropriate action to enforce the subpoena.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background on the Select Committee's Investigation...............     4
Select Committee Consideration...................................    20
Select Committee Votes...........................................    20
Select Committee Oversight Findings..............................    21
C.B.O. Estimate..................................................    21
Statement of General Performance Goals and Objectives............    21
Appendix.........................................................    21

                          PURPOSE AND SUMMARY

    On January 6, 2021, a violent mob breached the security 
perimeter of the United States Capitol, assaulted and injured 
scores of police officers, engaged in hand-to-hand violence 
with those officers over an extended period, and invaded and 
occupied the Capitol building, all in an effort to halt the 
lawful counting of electoral votes and reverse the results of 
the 2020 presidential election. In the words of many of those 
who participated in the violence, the attack was a direct 
response to false statements by then-President Trump--beginning 
on election night 2020 and continuing through January 6, 2021--
that the 2020 election had been stolen by corrupted voting 
machines, widespread fraud, and otherwise.
    In response, the House adopted House Resolution 503 on June 
30, 2021, establishing the Select Committee to Investigate the 
January 6th Attack on the United States Capitol (hereinafter 
referred to as the ``Select Committee'').
    The Select Committee is investigating the facts, 
circumstances, and causes of the January 6th attack and issues 
relating to the peaceful transfer of power, in order to 
identify how the events of January 6th were planned, what 
actions and statements motivated and contributed to the attack 
on the Capitol, how the violent riot that day was coordinated 
with a political and public relations strategy to reverse the 
election outcome, and why the Capitol security was insufficient 
to address what occurred. The Select Committee will evaluate 
all facets of these issues, create a public record of what 
occurred, and recommend to the House, and its relevant 
committees, corrective laws, policies, procedures, rules, or 
regulations.
    According to documents and testimony gathered by the Select 
Committee, in the weeks leading up to the January 6th attack on 
the U.S. Capitol, Jeffrey Bossert Clark participated in efforts 
to delegitimize the results of the 2020 presidential election 
and delay or interrupt the peaceful transfer of power. As 
detailed in a report issued by the U.S. Senate Judiciary 
Committee (hereinafter ``Senate Report'') and press accounts, 
after numerous courts throughout the United States had 
resoundingly rejected alleged voter fraud challenges to the 
election results by the Trump campaign, and after all states 
had certified their respective election results, Mr. Clark 
proposed that the Department of Justice (DOJ) send a letter to 
officials of the State of Georgia and other States suggesting 
that they call special legislative sessions to investigate 
allegations of voter fraud and consider appointing new slates 
of electors.\1\ In violation of DOJ policy and after a direct 
admonition from the Acting Attorney General of the United 
States, Mr. Clark also met with White House officials, 
including then-President Trump, to discuss efforts to 
delegitimize, disrupt, or overturn the election results.\2\ To 
further these efforts, President Trump considered installing 
Mr. Clark as the Acting Attorney General, a plan that was 
abandoned only after much of the DOJ leadership team and the 
White House Counsel threatened to resign if Mr. Clark was 
appointed.\3\
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    \1\U.S. Senate, Committee on the Judiciary, ``Subverting Justice: 
How the Former President and His Allies Pressured DOJ to Overturn the 
2020 Election,'' (Oct. 7, 2021) (``Senate Report''), at p. 4. See also 
Jonathan Karl, Betrayal: The Final Act of the Trump Show, (New York: 
Dutton, 2021), pp. 250-254.
    \2\Senate Report, at pp. 22-23, 28, 43-44.
    \3\Id., at pp. 37-38.
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    The Select Committee believes that Mr. Clark had 
conversations with others in the Federal Government, including 
Members of Congress, regarding efforts to delegitimize, 
disrupt, or overturn the election results in the weeks leading 
up to January 6th. The Select Committee expects that such 
testimony will be directly relevant to its report and 
recommendations for legislative and other action.
    On October 13, 2021, the Select Committee issued a subpoena 
for documents and testimony and transmitted it along with a 
cover letter and schedule to counsel for Mr. Clark, who 
accepted service on Mr. Clark's behalf on October 13, 2021.\4\ 
The subpoena required that Mr. Clark produce responsive 
documents and appear for a deposition on October 29, 2021.\5\
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    \4\See Appendix, Ex. 1 (Subpoena to Jeffrey B. Clark, Oct. 13, 
2021).
    \5\By mutual agreement, the date for testimony and production of 
documents was continued to November 5, 2021.
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    The contempt of Congress statute, 2 U.S.C. Sec.  192, makes 
clear that a witness summoned before Congress must appear or be 
``deemed guilty of a misdemeanor'' punishable by a fine of up 
to $100,000 and imprisonment for up to 1 year.\6\ Further, the 
Supreme Court in United States v. Bryan (1950) emphasized that 
the subpoena power is a ``public duty, which every person 
within the jurisdiction of the Government is bound to perform 
when properly summoned.''\7\ The Supreme Court recently 
reinforced this clear obligation by stating that ``[w]hen 
Congress seeks information needed for intelligent legislative 
action, it unquestionably remains the duty of all citizens to 
cooperate.''\8\
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    \6\The prison term for this offense makes it a Class A misdemeanor. 
18 U.S.C.  3559(a)(6). By that classification, the penalty for 
contempt of Congress specified in 2 U.S.C.  192 increased from $1,000 
to $100,000. 18 U.S.C.  3571(b)(5).
    \7\United States v. Bryan, 339 U.S. 323, 331 (1950).
    \8\Trump v. Mazars USA LLP, 140 S.Ct. 2019, 2036 (2020) (emphasis 
in original; internal quotation marks removed).
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    On November 5, 2021, Mr. Clark appeared at the negotiated 
time designated for his deposition but refused to produce any 
documents or answer pertinent questions of the Select 
Committee. Counsel for Mr. Clark expressed in no uncertain 
terms that, ``We will not be answering any questions or 
producing any documents.''\9\ Counsel and Mr. Clark then relied 
on a 12-page letter--addressed to the Chairman and hand-
delivered to Select Committee staff counsel at the beginning of 
the deposition--to object to nearly every question the Select 
Committee Members and staff put to Mr. Clark.\10\ Despite the 
Select Committee's attempts to determine the scope or nature of 
his objections on a question-by-question basis, Mr. Clark and 
his counsel refused to clarify their positions. When pressed to 
proceed through the Select Committee's questions, including 
topics to which there could be no colorable claim of privilege, 
Mr. Clark abruptly left the deposition. Despite notice to Mr. 
Clark that the deposition would resume later that day for the 
Chair to rule on Mr. Clark's objections and give him 
instructions on responding, Mr. Clark did not return to the 
deposition at the notified time. When the deposition 
reconvened, the Chairman ruled on the objections and directed 
the witness to answer, as prescribed in House rules, both on 
the record of the deposition and in subsequent communications 
to Mr. Clark's counsel. Mr. Clark's subsequent correspondence 
with the Select Committee failed to provide valid legal 
justification for his refusal to provide documents and 
testimony to the Select Committee.
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    \9\See Appendix, Ex. 2 (Transcript of November 5, 2021 Deposition 
of Jeffrey B. Clark), at p. 8.
    \10\Mr. Clark did answer one substantive question at the 
deposition: regarding his use of a particular gmail account. Appendix, 
Ex. 2, at pp. 31-32.
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    Mr. Clark's refusal to comply with the Select Committee's 
subpoena represents willful default under the law and warrants 
referral to the United States Attorney for the District of 
Columbia for prosecution under the contempt of Congress statute 
as prescribed by law. The denial of the information sought by 
the subpoena impairs Congress's central powers under the United 
States Constitution.

           BACKGROUND ON THE SELECT COMMITTEE'S INVESTIGATION

    House Resolution 503 sets out the specific purposes of the 
Select Committee, including:
           To investigate and report upon the facts, 
        circumstances, and causes ``relating to the January 6, 
        2021, domestic terrorist attack upon the United States 
        Capitol Complex.''
           To investigate and report upon the facts, 
        circumstances, and causes ``relating to the 
        interference with the peaceful transfer of power.''
           To investigate and report upon the facts, 
        circumstances, and causes relating to ``the influencing 
        factors that fomented such an attack on American 
        representative democracy while engaged in a 
        constitutional process.''
    The Supreme Court has long recognized Congress's oversight 
role. ``The power of the Congress to conduct investigations is 
inherent in the legislative process.''\11\ Indeed, Congress's 
ability to enforce its investigatory power ``is an essential 
and appropriate auxiliary to the legislative function.''\12\ 
``Absent such a power, a legislative body could not `wisely or 
effectively' evaluate those conditions `which the legislation 
is intended to affect or change.'''\13\
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    \11\Watkins v. United States, 354 U.S. 178, 187 (1957). See also 
Trump v. Mazars USA, LLP, 140 S.Ct. 2019, 2031 (2020).
    \12\McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
    \13\Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 305 (D.D.C. 1976), 
aff'd, 548 F.2d 977 (D.C. Cir. 1976) (quoting McGrain, 273 U.S. at 
175).
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    The oversight powers of House and Senate committees are 
also codified in legislation. For example, the Legislative 
Reorganization Act of 1946 directed committees to ``exercise 
continuous watchfulness'' over the executive branch's 
implementation of programs within their jurisdictions,\14\ and 
the Legislative Reorganization Act of 1970 authorized 
committees to ``review and study, on a continuing basis, the 
application, administration, and execution'' of laws.\15\
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    \14\Pub. L. 79-601, 79th Cong.  136, (1946).
    \15\Pub. L. 91-510, 91st Cong.  118, (1970).
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    The Select Committee was properly constituted under section 
2(a) of House Resolution 503, 117th Congress. As required by 
that resolution, Members of the Select Committee were selected 
by the Speaker, after ``consultation with the minority 
leader.''\16\ A bipartisan selection of Members was appointed 
pursuant to House Resolution 503 and the order of the House of 
January 4, 2021, on July 1, 2021, and July 26, 2021.\17\
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    \16\Speaker Pelosi detailed such consultation and her selection 
decisions in a July 21, 2021, press release available at https://
www.speaker.gov/newsroom/72121-2.
    \17\167 Cong. Rec. 115 (July 1, 2021), at p. H3597 and 167 Cong. 
Rec. 130 (July 26, 2021), at p. H3885. The January 4, 2021, order of 
the House provides that the Speaker is authorized to accept 
resignations and to make appointments authorized by law or by the 
House. See 167 Cong. Rec. 2 (Jan. 4, 2021), at p. H37.
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    Pursuant to House rule XI and House Resolution 503, the 
Select Committee is authorized ``to require, by subpoena or 
otherwise, the attendance and testimony of such witnesses and 
the production of books, records, correspondence, memoranda, 
papers, and documents as it considers necessary.''\18\ Further, 
section 5(c)(4) of House Resolution 503 provides that the 
Chairman of the Select Committee may ``authorize and issue 
subpoenas pursuant to clause 2(m) of rule XI in the 
investigation and study'' conducted pursuant to the enumerated 
purposes and functions of the Select Committee. The Select 
Committee's authorizing resolution further states that the 
Chairman ``may order the taking of depositions, including 
pursuant to subpoena, by a Member or counsel of the Select 
Committee, in the same manner as a standing committee pursuant 
to section 3(b)(1) of House Resolution 8, One Hundred 
Seventeenth Congress.''\19\ The October 13, 2021, subpoena to 
Mr. Clark was duly issued pursuant to section 5(c)(4) of House 
Resolution 503 and clause 2(m) of rule XI of the Rules of the 
House of Representatives.\20\
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    \18\House rule XI, cl. 2(m)(1)(B), 117th Cong. (2021); H. Res. 503, 
117th Cong.  5(c)(4) (2021).
    \19\H. Res. 503, 117th Cong.  5(c)(6) (2021).
    \20\Section 5(c)(4) of H. Res. 503 invokes clause 2(m)(3)(A)(i) of 
rule XI, which states in pertinent part: ``The power to authorize and 
issue subpoenas under subparagraph (1)(B) may be delegated to the chair 
of the committee under such rules and under such limitations as the 
committee may prescribe.''
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A. The Select Committee seeks information from Mr. Clark central to its 
        investigation into the attack on the U.S. Capitol and the 
        interference in the peaceful transfer of power

    The Select Committee seeks information from Mr. Clark 
central to its investigative responsibilities delegated to it 
by the House of Representatives. This includes the obligation 
to investigate and report on the facts, circumstances, and 
causes of the attack on January 6, 2021, and on the facts, 
circumstances and causes ``relating to the interference with 
the peaceful transfer of power.''\21\
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    \21\H. Res. 503, 117th Cong. (2021).
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    The events of January 6, 2021, involved both a physical 
assault on the Capitol building and law enforcement personnel 
protecting it and an attack on the constitutional process 
central to the peaceful transfer of power following a 
presidential election. The counting of electoral college votes 
by Congress is a component of that transfer of power that 
occurs every January 6th following a presidential election. 
This event is part of a complex process, mediated through the 
free and fair elections held in jurisdictions throughout the 
country, and through the statutory and constitutional processes 
set up to confirm and validate the results. In the case of the 
2020 presidential election, the January 6th electoral college 
vote count occurred following a series of efforts in the 
preceding weeks by former-President Trump and his supporters to 
challenge the legitimacy of the election, and disrupt, delay, 
and overturn the election results.
    According to eyewitness accounts as well as the statements 
of participants in the attack on January 6, 2021, the purpose 
of the assault was to stop the process of validating what then-
President Trump, his supporters, and his allies had 
characterized as a ``stolen'' or ``fraudulent'' election. The 
claims regarding the 2020 election results were advanced and 
amplified in the weeks leading up to the January 6th assault 
through efforts by the former President and his associates to 
spread false information about, and cast doubts on, the 
elections in Arizona, Pennsylvania, Michigan, and Georgia, 
among other States, and to press Federal, State, and local 
officials to use their authorities to undermine the democratic 
tradition of a peaceful transfer of power.\22\
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    \22\Marshall Cohen, Jason Morris, and Christopher Hickey, 
``Timeline: What Georgia prosecutors are looking at as they investigate 
Trump's efforts to overturn the election,'' CNN, (Aug. 5, 2021), 
available at https://www.cnn.com/interactive/2021/08/politics/trump-
georgia-2020-election/; Rebecca Ballhaus, Alex Leary, and Dustin Volz, 
``Amid Vaccine Rollout and Historic Hack, Trump Remains Focused on 
Reversing Election,'' Wall Street Journal, (Dec. 20, 2020), available 
at https://www.wsj.com/articles/amid-vaccine-rollout-and-historic-hack-
trump-remains-focused-on-reversing-election-11608401545; Jonathan 
Cooper, ``Arizona governor silences Trump's call, certifies election,'' 
Associated Press, (Dec. 2, 2020), available at https://apnews.com/
article/election-2020-donald-trump-arizona-elections-doug-ducey-
e2b8b0de5b809efcc9b1ad5d279023f4; Zeke Miller, Christina Cassidy and 
Colleen Long, ``Trump targets vote certification in late bid to block 
Biden,'' Associated Press, (Nov. 18, 2020), available at https://
apnews.com/article/donald-trump-targets-vote-certification-
fa1f61cc5de6352deaa588dab908128e.
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    Evidence obtained by the Select Committee and public 
accounts indicate that, in that time frame, Mr. Clark, while 
serving at the Department of Justice, participated in 
initiatives to use DOJ authorities to support false narratives 
about the 2020 election results in contravention of policy, 
tradition, and the facts.\23\
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    \23\Senate Report, at pp. 7-10.
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    While Mr. Clark refused to be interviewed by the Senate 
Judiciary Committee, the Senate Report nonetheless revealed 
portions of this story. According to the Senate Report, after 
being introduced by a Member of Congress, Mr. Clark met with 
then-President Trump on December 24, 2020, without the 
knowledge or authorization of DOJ leadership,\24\ and then 
pushed the Acting Attorney General Jeffrey Rosen and Deputy 
Attorney General Richard Donoghue ``to assist Trump's election 
subversion scheme.''\25\ According to the Senate Report, Mr. 
Clark urged DOJ to announce publicly that it was 
``investigating election fraud'' and to ``tell key swing state 
legislatures they should appoint alternate slates of electors 
following certification of the popular vote.''\26\
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    \24\Id., at p. 14.
    \25\Id., at pp. 3-4.
    \26\Id.
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    On December 28, 2020, after more than 60 courts had ruled 
against the Trump campaign and its allies with respect to 
claims of election fraud and the electoral college had already 
met and voted, Mr. Clark circulated to Mr. Rosen and Mr. 
Donoghue a draft letter to the Georgia Governor, General 
Assembly Speaker, and Senate President Pro Tempore that he 
recommended copying for other States.\27\ This proposed letter 
informed these State officials that DOJ had ``taken notice'' of 
election ``irregularities'' and recommended calling a special 
legislative session to ``evaluate the irregularities,'' 
determine ``which candidate for President won the most legal 
votes,'' and consider appointing a new slate of electors.\28\ 
Mr. Rosen and Mr. Donoghue summarily rejected Mr. Clark's 
proposed letter, pointing out to Mr. Clark that the letter was 
inaccurate and a violation of established Department 
policy.\29\
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    \27\Id., at p. 21.
    \28\Id., at pp. 21-22.
    \29\Id., at pp. 22-23. In his response to Mr. Clark, Mr. Donoghue 
noted: ``Despite dramatic claims to the contrary, we have not seen the 
type of fraud that calls into question the reported (and certified) 
results of the election.'' He reminded Mr. Clark that ``[Attorney 
General] Barr made that clear to the public only last week.''
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    Against Mr. Rosen's instructions and DOJ policy, according 
to the Senate Report, Mr. Clark continued having direct contact 
with then-President Trump, who offered to appoint Mr. Clark 
Acting Attorney General.\30\ During a meeting on January 2, 
2021, Mr. Clark told Mr. Rosen he might be persuaded to turn 
down the President's offer to have him replace Mr. Rosen if Mr. 
Rosen sent out the proposed letters.\31\ After Mr. Rosen 
refused to send the letters, Mr. Clark informed Mr. Rosen on 
January 3, 2021, that Mr. Clark intended to accept the 
President's offer to replace Mr. Rosen as Acting Attorney 
General.\32\ DOJ leadership (and several top White House 
advisors) then threatened to resign if the President appointed 
Mr. Clark as Acting Attorney General, and the plan to replace 
Mr. Rosen and proceed with Mr. Clark's efforts to interfere 
with the election results did not advance.\33\
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    \30\Id., at p. 28.
    \31\Id., at p. 34.
    \32\Id., at p. 35.
    \33\Id., at p. 38.
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    The Select Committee sought documents and testimony from 
Mr. Clark to obtain complete understanding of the attempts to 
use DOJ to delegitimize and disrupt the peaceful transfer of 
power following the 2020 presidential election, including 
illuminating the impetus for Mr. Clark's involvement and with 
whom he was collaborating inside and outside government to 
advance these efforts.

B. Mr. Clark has refused to comply with the Select Committee's subpoena 
        for testimony and documents

    On October 13, 2021, the Select Committee transmitted a 
subpoena to Mr. Clark ordering the production of both documents 
and testimony relevant to the Select Committee's 
investigation.\34\ The accompanying letter from Chairman 
Thompson stated that the Select Committee had reason to believe 
that Mr. Clark had information within the scope of the Select 
Committee's inquiry and set forth a schedule specifying 
categories of related documents sought by the Select 
Committee.\35\
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    \34\See Appendix, Ex. 1.
    \35\Id.
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    The requested documents covered topics including, but not 
limited to, Mr. Clark's role in connection with DOJ's 
investigation of allegations of fraud in the 2020 presidential 
election; communications with President Trump, senior White 
House officials, the Trump re-election campaign, Members of 
Congress, and state officials concerning alleged fraud in the 
2020 election and the selection of presidential electors; 
delaying or preventing certification of the 2020 presidential 
election results, including discussions of the role of Congress 
and the Vice President in counting electoral votes; the 
security of election systems in the United States; purported 
election irregularities, election-related fraud, or other 
election-related malfeasance, including specific allegations of 
voter fraud in four states; and alleged foreign interference in 
the 2020 election, including foreign origin disinformation 
spread through social media.
    The Select Committee's subpoena required that Mr. Clark 
produce the requested documents and provide testimony on 
October 29, 2021, at 10:00 a.m. This subpoena followed 
discussions between counsel for the Select Committee and Mr. 
Clark starting in early September. On October 27, 2021, Harry 
MacDougald, Esq. notified Select Committee staff that Mr. 
Clark's previous counsel had withdrawn and he had been retained 
by Mr. Clark. On that same date, Mr. MacDougald asked for a 
short continuance of the document production and deposition 
date to allow him to prepare for those events. The Select 
Committee accommodated Mr. Clark's interest in moving back the 
date of his appearance and document production and agreed to a 
new date of November 5, at 10:00 a.m. for both Mr. Clark's 
appearance and document production deadline.
    On November 5, 2021, Mr. Clark appeared as directed before 
the Select Committee, accompanied by Mr. MacDougald. The 
deposition was conducted in accordance with the House 
Regulations for the Use of Deposition Authority promulgated by 
the Chairman of the Committee on Rules pursuant to section 3(b) 
of House Resolution 8, 117th Congress.\36\ These regulations 
were provided to Mr. Clark and his attorney prior to his 
deposition.\37\ At the outset of the deposition, Mr. MacDougald 
handed Select Committee staff a 12-page letter addressed to 
Chairman Thompson.\38\ In that letter, and on the record at the 
deposition, Mr. MacDougald stated that Mr. Clark would not 
answer any of the Select Committee's questions on any subject 
and would not produce any documents.\39\ In his letter, Mr. 
MacDougald asserted that because former-President Trump was, 
while in office, entitled to confidential legal advice, Mr. 
Clark was ``subject to a sacred trust'' and that ``any attempts 
. . . to invade that sphere of confidentiality must be 
resisted,'' concluding that ``the President's confidences are 
not [Mr. Clark's] to waive.'' Mr. MacDougald's letter further 
stated 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.''\40\ Nowhere in his letter did Mr. 
MacDougald make any more specific assertion of executive 
privilege or of any other privilege.
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    \36\See 167 Cong. Rec. 2 (Jan. 4, 2021), at p. H41.
    \37\See Appendix, Ex. 1; and Appendix, Ex. 3 (Staff Email to 
Counsel for Jeffrey B. Clark, Nov. 3, 2021).
    \38\See Appendix, Ex. 4 (Letter from Counsel for Jeffrey B. Clark 
to Chairman Thompson, Nov. 5, 2021).
    \39\Although Mr. Clark argued with the Select Committee as to 
whether his refusal to answer substantive questions within the scope of 
the Select Committee's inquiry was properly described as ``blanket'' or 
``absolutist'' (Appendix, Ex. 2, at pp. 23, 36), Mr. MacDougald's 
message was clear: ``[Mr. MacDougald.] We're not answering questions 
today. We're not producing documents today.'' (Id., at p. 15).
    \40\See Appendix, Ex. 4, at p. 2.
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    Mr. MacDougald's letter attached an August 2 letter to Mr. 
Clark from Douglas A. Collins, counsel to former-President 
Trump.\41\ The two-page letter informed Mr. Clark that former-
President Trump was continuing to assert executive privilege 
over non-public information related to Mr. Clark's service at 
DOJ. Former-President Trump's assertion came despite the fact 
that both President Biden and DOJ had decided not to assert any 
privileges preventing Mr. Clark and other former DOJ officials 
from disclosing that information to committees of Congress.\42\ 
Mr. Collins's August 2 letter concluded, ``[n]onetheless, to 
avoid further distraction and without in any way otherwise 
waiving the executive privilege associated with the matters 
[under investigation], President Trump will agree not to seek 
judicial intervention to prevent [Mr. Clark's] testimony . . ., 
so long as the Committees do not seek privileged information 
from any other Trump administration officials or advisors.'' 
The letter concludes that, if the committees seek privileged 
information from other Trump administration officials, ``we 
will take all necessary and appropriate steps . . . to defend 
the Office of the Presidency.''\43\
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    \41\See Appendix, Ex. 4 (the Collins letter is enclosed).
    \42\Mr. Clark was advised of President Biden's and the Department 
of Justice position in a letter from Associate Deputy Attorney General 
Bradley Weinsheimer, dated July 26, 2021. (See Appendix, Ex. 5 (Letter 
from Department of Justice to Jeffrey B. Clark, July 26, 2021)).
    \43\Contrary to the interpretation of the August 2 letter offered 
by Mr. MacDougald, this last sentence suggests that Mr. Trump's 
representatives will take some action if this condition is met and the 
``Office of the Presidency'' needs defending.
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    In his November 5 letter, Mr. MacDougald argued that the 
Select Committee's September 23 subpoenas of four former Trump 
administration officials had made it ``especially clear to Mr. 
Clark that executive privilege had been invoked,'' because the 
four subpoenas were in ``violation of a condition'' in Mr. 
Collins's August 2 letter. Mr. MacDougald argued that Mr. 
Collins's letter should be read as former-President Trump's 
assertion of executive privilege with respect to the 
information the Select Committee was seeking from Mr. Clark. 
Thus, Mr. Clark was left with ``no choice'' but to treat all 
such information as subject to executive privilege ``and 
related privileges.''\44\
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    \44\Mr. MacDougald made various other observations relating to Mr. 
Trump's lawsuit to prevent the National Archives from releasing certain 
Trump presidential records to the Select Committee, asserting that Mr. 
Trump's claims of privilege in that litigation bolster Mr. Clark's 
contention that Mr. Trump intends to have Mr. Clark assert executive 
privilege in response to the subpoena. See Appendix, Ex. 4.
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    At Mr. Clark's deposition, Members of the Select Committee 
and staff attempted to obtain information from Mr. Clark and 
Mr. MacDougald concerning the boundaries of the privileges they 
sought to assert, posing a series of questions including 
whether Mr. Clark used his personal phone or email for official 
business,\45\ when he first met a specific Member of 
Congress,\46\ when he became engaged in the debate regarding 
Georgia election procedure,\47\ and what statements he made to 
the media regarding January 6th (statements to which Mr. 
Clark's counsel referred in his November 5 letter to the Select 
Committee).\48\ Mr. Clark refused to answer any of these 
questions and declined to provide a specific basis for his 
position, instead pointing generally to his counsel's 12-page 
November 5 letter.\49\ Mr. MacDougald announced that Mr. Clark 
would not produce any documents in response to the 
subpoena,\50\ and he and Mr. Clark walked out of the deposition 
at approximately 11:30 a.m. Before Mr. Clark and Mr. MacDougald 
departed, Select Committee staff counsel informed them clearly 
that the deposition would remain in recess, subject to the call 
of the Chair, while the Select Committee evaluated Mr. 
MacDougald's November 5 letter.\51\
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    \45\Appendix, Ex. 2, at p. 32.
    \46\Id., at p. 29.
    \47\Id., at p. 30.
    \48\Id., at pp. 25-26.
    \49\Id., at pp. 29-31. For example, when asked specifically 
``whether Mr. Clark used personal devices to communicate government 
business,'' Mr. Clark's attorney responded: ``Given the lack of 
specificity of the question, we can do no more than allude to the 
privileges that are asserted in the letter, which are the full panoply 
of executive, Federal law enforcement, and so on, privileges that are 
in the letter, and plus the reservation that we've made [regarding 
Constitutional rights].'' Id., at pp. 33-34.
    \50\Id., at p. 31.
    \51\Id., at p. 38.
---------------------------------------------------------------------------
    At 12:42 p.m. on November 5, Select Committee staff counsel 
sent Mr. MacDougald an email to inform him that the Select 
Committee would reconvene Mr. Clark's deposition at 4:00 p.m. 
that day.\52\ Staff counsel informed Mr. MacDougald that the 
purpose of the reconvened deposition would be to obtain a 
ruling from the Chairman, as required by House deposition 
authority regulation 7 (which staff counsel quoted), on Mr. 
Clark's assertion of privilege and refusal to answer questions. 
Mr. Clark and Mr. MacDougald were asked to return to the site 
of the deposition at 4:00 p.m. or indicate their refusal to do 
so. Staff counsel noted, finally, that the Select Committee was 
preparing a response to the letter that Mr. MacDougald had 
delivered that morning, and that he would provide that letter 
at or before the reconvened deposition.
---------------------------------------------------------------------------
    \52\See Appendix, Ex. 6 (Staff Email to Counsel for Jeffrey B. 
Clark, Nov. 5, 2021).
---------------------------------------------------------------------------
    Mr. MacDougald responded by email at 3:24 p.m. that he was 
on a flight to Atlanta and that it would not be possible for 
him to return to the reconvened deposition with Mr. Clark at 
4:00 that afternoon.\53\ His email response also included an 
informal list of purported legal objections to the Select 
Committee's demand that Mr. Clark reappear at his deposition 
and to the Chairman's anticipated ruling on Mr. Clark's stated 
objections. When the Select Committee reconvened Mr. Clark's 
deposition at 4:15 p.m. on November 5, Chairman Thompson noted 
for the record that Mr. Clark was not entitled to refuse to 
provide testimony to the Select Committee based on categorical 
claims of privilege. Accordingly, consistent with applicable 
law and the House's deposition rules, the Chairman overruled 
Mr. Clark's objections and directed him to answer the questions 
posed by Members and Select Committee counsel.
---------------------------------------------------------------------------
    \53\See Appendix, Ex. 7 (Email from Counsel for Jeffrey B. Clark to 
Select Committee Staff, Nov. 5, 2021).
---------------------------------------------------------------------------
    At 4:30 p.m. on November 5, Select Committee staff 
transmitted a letter from Chairman Thompson to Mr. MacDougald 
responding to the arguments made in the 12-page letter from Mr. 
MacDougald.\54\ The Chairman stated in his response letter that 
there was no proper invocation of executive privilege with 
respect to Mr. Clark's testimony and document production in 
either Mr. Clark's November 5 letter, the August 2 letter from 
Mr. Trump's counsel, or in the information provided on the 
record at that morning's session of Mr. Clark's deposition. The 
Chairman noted that in the August 2 letter, Mr. Trump's counsel 
had, in fact, specifically stated that Mr. Trump would not seek 
judicial intervention to prevent Mr. Clark's testimony and that 
Mr. MacDougald had, at the deposition that morning, stated that 
he had received no further instructions from Mr. Trump relating 
to Mr. Clark's testimony. The Chairman also noted that the 
Select Committee had received no direct communication from 
former-President Trump asserting privilege over information 
that the Select Committee sought pursuant to its subpoena to 
Mr. Clark.
---------------------------------------------------------------------------
    \54\See Appendix, Ex. 8 (Letter from Chairman Thompson to Counsel 
for Jeffrey B. Clark, Nov. 5, 2021).
---------------------------------------------------------------------------
    Chairman Thompson's November 5 letter stressed that, even 
if former-President Trump had previously invoked privilege with 
respect to Mr. Clark's testimony and document production, the 
law does not support blanket, absolute claims of testimonial 
immunity even for senior presidential aides (which Mr. Clark 
was not) or blanket, non-specific assertions of executive 
privilege over the production of documents to Congress. The 
Chairman also pointed out that, even had Mr. Trump invoked 
executive privilege with respect to Mr. Clark's testimony and 
document production, the privilege would only have covered 
communications that related to official government business. He 
noted that Mr. Clark would have had to assert any claim of 
privilege narrowly, specifically identifying the scope of those 
claims and which areas of testimony and which responsive 
documents the privilege claim covered. The Chairman noted his 
intention to formally reject Mr. Clark's claim of privilege 
when the deposition resumed.
    On November 8, Mr. MacDougald sent Chairman Thompson a 
brief response to his November 5 letter.\55\ In it, Mr. 
MacDougald asserted that, because the letter had not been 
transmitted until 4:30 that afternoon, when Mr. MacDougald was 
on a flight back to Atlanta, it was ``physically impossible'' 
for Mr. Clark and him to appear at the resumed deposition as 
instructed--all despite the earlier notices for reconvening.
---------------------------------------------------------------------------
    \55\See Appendix, Ex. 9 (Letter from Counsel for Jeffrey B. Clark 
to Chairman Thompson, Nov. 8, 2021).
---------------------------------------------------------------------------
    In his letter, Mr. MacDougald also noted his disagreement 
with the points made in the Chairman's November 5 letter, 
saying he would respond to it in detail later, but insisting 
that Mr. Clark had not, when he appeared for his deposition the 
morning of November 5, made a ``blanket'' refusal to produce 
documents or answer questions. Mr. MacDougald characterized Mr. 
Clark's position as based on unspecified ``matters of timing, 
prudence, and fairness, not on purported executive-privilege 
absolutism.'' He claimed that until there was a final judgment 
in the Trump v. Thompson litigation\56\ relating to the Select 
Committee's request for presidential records held in the 
National Archives, Mr. Clark would be ``in ethical jeopardy'' 
if he acceded to the Select Committee's demand for documents 
and testimony.
---------------------------------------------------------------------------
    \56\Trump v. Thompson, No. 21-cv-2769 (D.D.C. Nov. 9, 2021), _ 
F.Supp.3d _, 2021 U.S. Dist. LEXIS 216812*, currently on appeal, Trump 
v. Thompson, No. 21-5254 (D.C. Cir.), 2021 U.S. Spp. LEXIS 33578*, 2021 
WL 5239098 (Nov. 11, 2021).
---------------------------------------------------------------------------
    On November 9, Chairman Thompson wrote to Mr. MacDougald to 
inform him of his formal ruling on the objections that Mr. 
Clark had raised during his deposition, and to respond in 
greater detail to the points made in the 12-page letter dated 
November 5 that Mr. MacDougald delivered to Select Committee 
staff at Mr. Clark's deposition.\57\ The Chairman's letter 
noted that when the Select Committee reconvened, the Chairman 
stated on the record that Mr. Clark was not entitled to refuse 
to testify based on categorical claims of privilege and that, 
accordingly, the Chairman had overruled Mr. Clark's objections 
and directed him to answer the Select Committee's questions. 
The Chairman went on to detail three fundamental points. First, 
Mr. Clark had not established that either the former President 
or the current President had explicitly invoked executive 
privilege at all. Second, the law did not entitle Mr. Clark to 
refuse to respond to the Select Committee's questions and 
document requests with a ``blanket'' objection. Third, Mr. 
Clark's reliance on executive privilege was tenuous and the 
current President had determined that, with respect to the 
subjects of the testimony the Select Committee sought, the 
``congressional need for information outweighs the Executive 
Branch's interest in maintaining confidentiality.''
---------------------------------------------------------------------------
    \57\See Appendix, Ex. 10 (Letter from Chairman Thompson to Counsel 
for Jeffrey B. Clark, Nov. 9, 2021).
---------------------------------------------------------------------------
    The Chairman's letter also pointed out that, while several 
courts had addressed assertions of absolute testimonial 
immunity similar to Mr. Clark's, all had held that there was no 
such immunity even where the incumbent President had explicitly 
invoked executive privilege as to a close White House adviser. 
The Chairman's letter further noted that the issues in the 
litigation that Mr. Trump had instituted relating to the Select 
Committee's document request of the National Archives were 
separate and distinct from Mr. Clark's privilege issues, so 
that a judgment in that matter would not resolve Mr. Clark's 
claims of absolute immunity from testifying in response to the 
Select Committee's subpoena. The Chairman's letter also noted 
that many of the Select Committee's questions had nothing to do 
with any communications Mr. Clark and Mr. Trump may have had. 
Chairman Thompson concluded by noting that Mr. Clark's refusal 
to provide either documents or testimony and failure to 
articulate any particularized claims of privilege indicated his 
willful disregard for the authority of the Select Committee. He 
stressed that there was no legal basis for Mr. Clark's 
assertion of a broad, absolute immunity or other privilege from 
testifying or providing responsive documents and noted several 
areas of inquiry that could not possibly implicate any version 
of executive privilege, even had such privilege been asserted 
in the manner legally required. The Chairman concluded that, 
for those reasons, he had overruled Mr. Clark's blanket 
objections to the Select Committee's subpoena.
    On November 12, Mr. MacDougald responded on behalf of Mr. 
Clark to the Chairman's letters of November 5 and 9.\58\ Mr. 
MacDougald's 21-page response consisted of a letter and an 
attached 19-point memorandum, summarized in the letter. In 
them, Mr. MacDougald raised several objections and arguments, 
including that the Select Committee's subpoena was improper in 
that it was ``to carry out an unlawful and plainly non-
legislative purpose'' relating to law enforcement. He also 
expressed what he labeled ``due process'' objections, including 
that for the Chairman to rule on Mr. Clark's objections was to 
act as the ``judge of [his] own case.'' Mr. MacDougald also 
argued that former-President Trump had invoked executive 
privilege both in Mr. Collins's August 2 letter, as well as in 
comments reported in a Fox News segment the next day. He 
asserted that it was ``extremely unfair'' for the Select 
Committee to force Mr. Clark to testify before there had been a 
final resolution of the executive privilege issues raised in 
the Trump v. Thompson litigation. In addition, Mr. MacDougald 
objected to DOJ's July 26 letter authorizing Mr. Clark to 
testify on matters of interest to the Select Committee relating 
to information acquired during his DOJ service. He also 
asserted that the areas about which the Select Committee sought 
Mr. Clark's testimony and documents under the subpoena exceeded 
those authorized under the Select Committee's organizing 
resolution, claiming that Mr. Clark had no involvement of any 
sort with the events that occurred on January 6th. Mr. 
MacDougald's November 12 response also made several other 
objections unrelated to questions of executive privilege, 
including an assertion that the Select Committee's subpoena was 
invalid. Mr. MacDougald's November 12 response closed with the 
unsupported assertion that the Select Committee was seeking to 
``relitigate the failed second impeachment of President Trump'' 
through an unconstitutional process.
---------------------------------------------------------------------------
    \58\See Appendix, Ex. 11 (Letter and Memo from Counsel for Jeffrey 
B. Clark to Chairman Thompson, Nov. 12, 2021).
---------------------------------------------------------------------------
    On November 17, 2021, Chairman Thompson sent a letter to 
Mr. MacDougald addressing the various claims raised in the 
November 12 letter.\59\ The Chairman noted that Mr. MacDougald 
had failed to provide any legal authority justifying Mr. 
Clark's continuing refusal to provide testimony and documents 
compelled by the subpoena. The Chairman also addressed the 
various challenges Mr. MacDougald made with respect to the 
scope of the Select Committee's work, its authority to issue 
subpoenas, and the fairness of the deposition process. The 
Chairman set forth the governing resolutions, House rules, and 
caselaw that justified the actions taken and the process 
followed with respect to Mr. Clark.
---------------------------------------------------------------------------
    \59\See Appendix, Ex. 12 (Letter from Chairman Thompson to Counsel 
for Jeffrey B. Clark, Nov. 17, 2021).
---------------------------------------------------------------------------
    On November 29, 2021, Mr. MacDougald sent two letters to 
Chairman Thompson challenging the authority of the Select 
Committee to issue deposition subpoenas and raising various 
concerns supposedly prompted by his review of the deposition 
transcript.\60\ Mr. MacDougald reiterated Mr. Clark's continued 
refusal to answer questions at a deposition, instead proposing 
that Mr. Clark appear at a public hearing of the Select 
Committee to testify as to certain matters Mr. MacDougald 
deemed ``appropriately tailored to the Committee's mission 
under H. Res. 503,'' namely, comments Mr. Clark made to a 
reporter after January 6th regarding the events at the Capitol 
and ``his role, if any, in planning, attending, responding to, 
or investigating January 6's events or former President Trump's 
speech on the Ellipse that same day.''\61\
---------------------------------------------------------------------------
    \60\See Appendix, Exs. 13 and 14 (Letters from Counsel for Jeffrey 
B. Clark to Chairman Thompson, Nov. 29, 2021).
    \61\Mr. MacDougald had previously represented to the Select 
Committee that Mr. Clark ``had nothing to do with the January 6 
protests or the incursion of some into the Capitol.'' See, e.g., 
Appendix, Exs. 4 and 11.
---------------------------------------------------------------------------

C. Mr. Clark's purported basis for non-compliance is wholly without 
        merit

    As part of its legislative function, Congress has the power 
to compel witnesses to testify and produce documents.\62\ An 
individual--whether a member of the public or an executive 
branch official--has a legal obligation to comply with a duly 
issued and valid congressional subpoena, unless a valid and 
overriding privilege or other legal justification permits non-
compliance.\63\ In United States v. Bryan, the Supreme Court 
stated:

          A subpoena has never been treated as an invitation to a game 
        of hare and hounds, in which the witness must testify only if 
        cornered at the end of the chase. If that were the case, then, 
        indeed, the great power of testimonial compulsion, so necessary 
        to the effective functioning of courts and legislatures, would 
        be a nullity. We have often iterated the importance of this 
        public duty, which every person within the jurisdiction of the 
        Government is bound to perform when properly summoned.\64\

    In United States v. Nixon, 418 U.S. 683, 703-16 (1974), the 
Supreme Court recognized an implied constitutional privilege 
protecting presidential communications. The Court held that the 
privilege is qualified, not absolute, and that it is limited to 
communications made ``in performance of [a President's] 
responsibilities of his office and made in the process of 
shaping policies and making decisions.''\65\ The D.C. Circuit 
has recognized that, under certain, limited circumstances, 
executive privilege may be invoked to preclude congressional 
inquiry into specific types of presidential communications.\66\
---------------------------------------------------------------------------
    \62\McGrain, 273 U.S. at 174 (``We are of opinion that the power of 
inquiry--with process to enforce it--is an essential and appropriate 
auxiliary to the legislative function.''); Barenblatt v. United States, 
360 U.S. 109, 111 (1959) (``The scope of the power of inquiry, in 
short, is as penetrating and far-reaching as the potential power to 
enact and appropriate under the Constitution.'').
    \63\Watkins, 354 U.S. at 187-88 (``It is unquestionably the duty of 
all citizens to cooperate with the Congress in its efforts to obtain 
the facts needed for intelligent legislative action.''); see also 
Committee on the Judiciary v. Miers, 558 F. Supp.2d 53, 99 (D.D.C. 
2008) (``The Supreme Court has made it abundantly clear that compliance 
with a congressional subpoena is a legal requirement.'') (citing United 
States v. Bryan, 339 U.S. 323, 331 (1950)).
    \64\United States v. Bryan, 339 U.S. 323, 331 (1950).
    \65\Nixon v. Administrator of General Services (GSA), 433 U.S. 425, 
449 (1977) (internal quotes and citations omitted).
    \66\Senate Select Committee on Presidential Campaign Activities v. 
Nixon, 498 F.2d 725, 7293-33 (D.C. Cir. 1974).
---------------------------------------------------------------------------
    Mr. Clark has refused to testify or produce documents in 
response to the subpoena. Mr. Clark's refusal to comply with 
the subpoena is ostensibly based on broad and undifferentiated 
assertions of various privileges, including claims of executive 
privilege purportedly asserted by former-President Trump.\67\ 
As the Select Committee has repeatedly pointed out to Mr. 
Clark, his claims of executive privilege are wholly without 
merit, but even if some privilege applied to aspects of Mr. 
Clark's testimony or document production, he was required to 
assert any testimonial privilege on a question-by-question 
basis and produce a privilege log setting forth specific 
privilege claims for each withheld document. Mr. Clark has done 
neither.
---------------------------------------------------------------------------
    \67\In correspondence with the Select Committee, Mr. Clark has 
supplemented his executive privilege claims with a variety of claims 
challenging the authority of the Select Committee and the subpoena, 
including that the Select Committee was not lawfully constituted and 
the subpoena seeks irrelevant information, is duplicative of other 
investigatory steps the Select Committee has taken, violates House 
rules, is ``unfair,'' and is indicative of bias against his political 
views. Mr. Clark has not cited any legal authority for the proposition 
that any of these objections justify refusal to comply with a 
congressional subpoena because no such authority exists.
---------------------------------------------------------------------------
            1. Executive privilege has not been invoked
    Mr. Clark is not able to establish the foundational element 
of a claim of executive privilege: an invocation of the 
privilege by the Executive. In United States v. Reynolds, 345 
U.S. 1, 7-8 (1953), the Supreme Court held that executive 
privilege:

          [B]elongs to the Government and must be asserted by it; it 
        can neither be claimed nor waived by a private party. It is not 
        to be lightly invoked. There must be a formal claim of 
        privilege, lodged by the head of the department which has 
        control over the matter, after actual personal consideration by 
        that officer.\68\
---------------------------------------------------------------------------
    \68\See also United States v. Burr, 25 F. Cas. 187, 192 (CCD Va. 
1807) (ruling that President Jefferson had to personally identify the 
passages he deemed confidential and could not leave this determination 
to the U.S. Attorney).

    Here, the Select Committee has not been provided with any 
formal invocation of executive privilege by the incumbent 
President, the former President\69\ or any other current 
employee of the executive branch. To the contrary, the 
executive branch has explicitly authorized Mr. Clark to provide 
the testimony and documents sought by the Select Committee. By 
letter dated July 26, 2021, the Department of Justice reminded 
Mr. Clark that Department attorneys are generally required to 
protect non-public information, including information that 
could be subject to various privileges ``law enforcement, 
deliberative process, attorney work product, attorney-client, 
and presidential communications privileges.'' After listing 
those protective privileges, however, the Department explicitly 
authorized Mr. Clark ``to provide unrestricted testimony to 
[Congress], irrespective of potential privilege'' within the 
stated scope of Congress's investigations.\70\
---------------------------------------------------------------------------
    \69\The Supreme Court has held that a former President may assert 
executive privilege on his own, but his claim should be given less 
weight than that of an incumbent President. Nixon v. GSA, 433 U.S. at 
449 (the ``expectation of the confidentiality of executive 
communications has always been limited and subject to erosion over time 
after an administration leaves office''). The Court made note of the 
fact that neither President Ford nor President Carter supported former-
President Nixon's assertion of privilege, which, the Court said 
``detracts from the weight of his contention [that the disclosure of 
the information at issue] impermissibly intrudes into the executive 
function and the needs of the Executive Branch.'' Id.; see also Trump 
v. Thompson, No. 21-cv-2769, at *13 (the incumbent President ``is best 
positioned to evaluate the long-term interests of the executive branch 
and to balance the benefits of disclosure against any effect on the [. 
. .] ability of future executive branch advisors to provide full and 
frank advice'').
    \70\See Appendix, Ex. 5.
---------------------------------------------------------------------------
    The Select Committee has not received any formal invocation 
of privilege from the former President. Mr. Trump has had no 
communication with the Select Committee--a fact the Select 
Committee has pointed out to Mr. Clark's counsel on several 
occasions.\71\ Nor has the former President provided Mr. Clark 
any clear invocation of executive privilege with respect to his 
testimony. Instead, in justifying his refusal to comply with 
the Select Committee subpoena on November 5, Mr. Clark cited to 
an August 2 letter from Mr. Trump's counsel advising Mr. Clark 
that Mr. Trump would not seek judicial intervention to prevent 
his testimony before various congressional committees.\72\ 
Notably, as acknowledged by Mr. Clark's attorney during the 
November 5 deposition, Mr. Clark relied on his interpretation 
of the August 2 letter as an executive privilege instruction 
from Mr. Trump without having taken any steps to confirm this 
interpretation with Mr. Trump or his representatives.
---------------------------------------------------------------------------
    \71\See Appendix, Exs. 8 and 10.
    \72\Mr. Clark contends that certain ``conditions'' attached to Mr. 
Trump's decision not to block testimony from Mr. Clark and other 
Department of Justice officials were triggered after the August 2 
letter, thereby negating Mr. Trump's authorization for Mr. Clark to 
testify. (See Appendix, Exs. 4 and 11.) However, the fact remains that 
Mr. Clark has failed to put forward any invocation of executive 
privilege or revised instructions from Mr. Trump regarding the 
assertion of privilege with respect to Mr. Clark.\73\
    \73\Appendix, Ex. 2, at pp. 11, 16.
---------------------------------------------------------------------------
    Under these circumstances, there is no actual claim by Mr. 
Trump of executive privilege with respect to Mr. Clark's 
testimony and materials.
            2. Mr. Clark is not entitled to absolute immunity
    Mr. Clark has refused to provide any responsive documents 
or answer any questions based on his asserted reliance on Mr. 
Trump's purported invocation of executive privilege. However, 
even if Mr. Trump had invoked executive privilege, and even if 
certain testimony or documents would fall within that 
privilege, Mr. Clark would not be absolutely immune from 
compelled testimony before the Select Committee.
    In apparent recognition of the weakness of his legal 
position, Mr. Clark has repeatedly disavowed that he made any 
``blanket'' or ``absolute'' claim of privilege.\74\ Yet, he has 
clearly adopted such a position: He refused to answer any 
substantive questions put to him on November 5; he walked out 
of the deposition; he failed to return when the deposition 
reconvened; and he rejected several opportunities to reconsider 
his position after being confronted with controlling legal 
authority that foreclosed his claims.
---------------------------------------------------------------------------
    \74\See Appendix, Exs. 4 and 11.
---------------------------------------------------------------------------
    Every court that has considered the concept of absolute 
immunity from compelled congressional testimony has rejected 
it. These holdings have underscored that even senior White 
House aides who advise the President on official government 
business are not immune from compelled congressional 
process.\75\ To the extent that testimony by Mr. Clark relates 
to information reached by a privilege, Mr. Clark had the duty 
to appear before the Select Committee to provide testimony and 
invoke privilege where appropriate on a question-by-question 
basis.\76\
---------------------------------------------------------------------------
    \75\See Committee on the Judiciary v. McGahn, 415 F.Supp.3d 148, 
214 (D.D.C. 2019) (``To make the point as plain as possible, it is 
clear to this Court for the reasons explained above that, with respect 
to senior-level presidential aides, absolute immunity from compelled 
congressional process simply does not exist.''); Miers, 558 F. Supp.2d 
at 101 (White House counsel may not refuse to testify based on 
direction from President that testimony will implicate executive 
privilege).
    \76\Courts have similarly rejected blanket, non-specific claims of 
executive privilege over the production of documents to Congress. See 
Comm. on Oversight & Gov't Reform v. Holder, No. 12-cv-1332, 2014 WL 
12662665, at *2 (D.D.C. Aug. 20, 2014) (rejecting a ``blanket'' 
executive-privilege claim over subpoenaed documents).
---------------------------------------------------------------------------
    The Select Committee directed Mr. Clark and his counsel to 
the relevant authority on this point several times--at the 
deposition, when Mr. Clark first raised the issue of executive 
privilege, and in several letters since.\77\ In his protracted 
correspondence with the Select Committee, Mr. Clark has 
assiduously avoided this clear authority, and has cited no case 
that holds otherwise. His categorical refusal to answer 
questions and produce documents is entirely improper and 
unsupported by legal authority.\78\
---------------------------------------------------------------------------
    \77\See Appendix, Ex. 2, at p. 20; and Exs. 8, 10, and 12.
    \78\Even if properly raised by Mr. Clark, any claim of executive 
privilege would fail because the Select Committee's need to investigate 
the facts and circumstances surrounding the January 6th assault on the 
U.S. Capitol and the Nation's democratic institutions far outweighs any 
executive branch interest in maintaining confidentiality, particularly 
where the core substance of Mr. Clark's activities has already been 
described by others within the Department of Justice. See Senate 
Report, at pp. 19-37. As noted by DOJ, the ``extraordinary events in 
this matter . . . present[] an exceptional situation in which the 
congressional need for information outweighs the Executive Branch's 
interest in maintaining confidentiality.'' Appendix, Ex. 5, at p. 2.
---------------------------------------------------------------------------
            3. Even if the former President had invoked executive 
                    privilege and Mr. Clark had properly asserted it, 
                    the Select Committee seeks information from Mr. 
                    Clark to which executive privilege would not 
                    conceivably apply
    The law is clear that executive privilege does not extend 
to discussions relating to non-governmental business or solely 
among private citizens.\79\ In In re Sealed Case (Espy), 121 
F.3d 729, 752 (D.C. Cir. 1997), the D.C. Circuit explained that 
the presidential communications privilege covered 
``communications authored or solicited and received by those 
members of an immediate White House adviser's staff who have 
broad and significant responsibility for investigating and 
formulating the advice to be given the President on the 
particular matter to which the communications relate.'' The 
court stressed that the privilege only applies to 
communications intended to advise the President ``on official 
government matters.''\80\ In Judicial Watch, Inc. v. Department 
of Justice, 365 F.3d 1108, 1123 (D.C. Cir. 2004), the D.C. 
Circuit reaffirmed that the presidential communications 
privilege applies only to documents ``solicited and received by 
the President or his immediate advisers in the Office of the 
President.'' Relying on Espy and the principle that ``the 
presidential communications privilege should be construed as 
narrowly as is consistent with ensuring that the 
confidentiality of the President's decision-making process is 
adequately protected,''\81\ the circuit court refused to extend 
the privilege even to executive branch employees whose sole 
function was to provide advice to the President in the 
performance of a ``quintessential and nondelegable Presidential 
power.''\82\
---------------------------------------------------------------------------
    \79\Nixon v. GSA, 433 U.S. at 449.
    \80\Id.
    \81\Id., at 1116.
    \82\Id., at 1111. See also Miers, 558 F. Supp.2d at 100 (privilege 
claimants acknowledged that executive privilege applies only to ``a 
very small cadre of senior advisors'').
---------------------------------------------------------------------------
    The Select Committee seeks information from Mr. Clark on a 
range of subjects that the presidential communications 
privilege does not reach. For example, the Select Committee 
seeks information from Mr. Clark about his interactions with 
private citizens, Members of Congress, or others outside the 
White House related to the 2020 election or efforts to overturn 
its results.\83\ At his deposition, Mr. Clark refused to answer 
questions regarding whether he used his personal phone or email 
for official business,\84\ when he first met a specific Member 
of Congress,\85\ and what statements he made to the media 
regarding January 6th.\86\ Mr. Clark has failed to provide a 
specific basis for his refusal to answer these questions--none 
of which involve presidential communications--instead pointing 
generally to his counsel's November 5 letter.\87\ That November 
5 letter, however, provided no authority or argument to justify 
Mr. Clark's refusal to answer questions on these topics.
---------------------------------------------------------------------------
    \83\After Mr. Clark walked out of his deposition, Members of the 
Select Committee and staff described on the record several topics they 
had intended to cover with Mr. Clark. Appendix, Ex. 2, at pp. 41-45.
    \84\Appendix, Ex. 2, at p. 32.
    \85\Id., at p. 29.
    \86\Id., at pp. 25-26
    \87\Id., at pp. 29-31. For example, when asked specifically 
``whether Mr. Clark used personal devices to communicate government 
business,'' Mr. Clark's attorney responded: ``Given the lack of 
specificity of the question, we can do no more than allude to the 
privileges that are asserted in the letter, which are the full panoply 
of executive, Federal law enforcement, and so on, privileges that are 
in the letter, and plus the reservation that we've made [regarding 
Constitutional rights].''Id., at pp. 33-34.
---------------------------------------------------------------------------
    Even with respect to Select Committee inquiries that 
involve Mr. Clark's direct communications with Mr. Trump, 
executive privilege does not bar Select Committee access to 
that information. Executive privilege reaches only those 
communications that relate to official government business.\88\ 
Here, it appears that much of Mr. Clark's conduct regarding 
subjects of concern to the Select Committee did not relate to 
official government business. For example, Mr. Clark's efforts 
regarding promoting unsupported election fraud allegations with 
state officials constituted an initiative that Mr. Clark 
apparently initially kept secret from DOJ and then, when 
revealed, continued to pursue, even after being explicitly 
instructed to stop.
---------------------------------------------------------------------------
    \88\See Espy, 121 F.3d at 752 (``the privilege only applies to 
communications . . . in the course of performing their function of 
advising the President on official government matters''); cf. In re 
Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998) (Deputy White House 
Counsel's ``advice [to the President] on political, strategic, or 
policy issues, valuable as it may have been, would not be shielded from 
disclosure by the attorney-client privilege.'').
---------------------------------------------------------------------------
            4. Mr. Clark has not established that any testimony or 
                    documents are protected by the attorney-client 
                    privilege
    Mr. Clark has also made unspecific claims that the subpoena 
implicates the attorney-client privilege and the work product 
doctrine.\89\ As an initial matter, under longstanding 
congressional precedent, recognition of common law privileges 
such as the attorney-client privilege is at the discretion of 
congressional committees.\90\ Further, Mr. Clark has failed to 
articulate a coherent argument regarding the applicability of 
the attorney-client privilege to the specific information 
sought by the Select Committee. Despite repeated requests,\91\ 
Mr. Clark has failed to identify the client who could have an 
interest in protecting the confidentiality of communications 
with Mr. Clark or the subject matter of any purportedly 
privileged conversations.\92\ ``It is settled law that the 
party claiming the privilege bears the burden of proving that 
the communications are protected,'' and to carry this burden 
one ``must present the underlying facts demonstrating the 
existence of the privilege.''\93\ Further, as with assertions 
of other privileges, ``[a] blanket assertion of the [attorney 
client] privilege will not suffice.''\94\
---------------------------------------------------------------------------
    \89\See Appendix, Ex. 4.
    \90\See, e.g., Christopher M. Davis, Todd Garvey, and Ben Wilhelm, 
``Congressional Oversight Manual,'' Congressional Research Service, 
(RL30240, Mar. 31, 2021), pp. 61-64.
    \91\See Appendix, Ex. 2, at pp. 35-36; Appendix, Ex. 10.
    \92\The general subject matter of the communications is 
particularly critical here, where it is questionable as to whether Mr. 
Clark was providing legal advice within the scope of an attorney-client 
relationship. See Lindsey, 148 F.3d at 1106 (``advice on political, 
strategic, or policy issues, valuable as it may have been, would not be 
shielded from disclosure by the attorney-client privilege'').
    \93\Id. Of course, the attorney-client relationship privilege would 
only apply to those communications that qualify based on their 
substance and over which confidentiality has been maintained. The 
attorney-client ``privilege applies only if (1) the asserted holder of 
the privilege is . . . a client; (2) the person to whom the 
communication was made . . . is acting as a lawyer; (3) the 
communication relates to a fact of which the attorney was informed (a) 
by his client (b) without the presence of strangers (c) for the purpose 
of securing primarily either (i) an opinion on law or (ii) legal 
services or (iii) assistance in some legal proceeding, and not (d) for 
the purpose of committing a crime or tort; and (4) the privilege has 
been (a) claimed and (b) not waived by the client.'' In re Sealed Case, 
737 F.2d 94, 98-99 (1984).
    \94\Lindsey, 148 F.3d at 1106.
---------------------------------------------------------------------------
    To the extent Mr. Clark believes a privilege applies, he 
was required to assert it specifically as to communications or 
documents, providing the Select Committee with sufficient 
information on which to evaluate each contention. He has not 
done so.\95\
---------------------------------------------------------------------------
    \95\Mr. Clark has also claimed that ``ethical considerations'' 
prevent his testimony, citing D.C. Bar Ethics Opinion No. 288 (See 
Appendix, Ex. 4, at p. 8). That opinion actually allows lawyers to 
produce information to Congress when given the choice between 
production or contempt.
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            5. The pendency of litigation involving the former 
                    President does not justify Mr. Clark's refusal to 
                    testify or produce documents
    In his November 8 letter, Mr. Clark's counsel stated that 
his ``threshold objection'' is not based on ``purported 
executive-privilege absolutism,'' but rather that the mere 
pendency of litigation initiated by Mr. Trump regarding 
production of documents by the National Archives pursuant to 
the Presidential Records Act absolves Mr. Clark from compliance 
with a congressional subpoena. This is not a valid objection to 
a subpoena, and the Select Committee is not aware of any legal 
authority that supports this position. Moreover, the issues 
raised in the National Archives litigation (Trump v. Thompson) 
are wholly separate and distinct from those raised by Mr. 
Clark, and the result in that case will not justify his refusal 
to testify, no matter the outcome.
    The dispute in Trump v. Thompson is whether a former 
President's assertion of executive privilege alone pursuant to 
statutory mechanism can prevent the Archivist from complying 
with the Presidential Records Act and turning over documents in 
the Archivist's possession in response to a congressional 
request that is authorized by the statute. In that case, the 
former President has made a formal invocation of executive 
privilege and has taken legal action to assert that privilege. 
The district court has held that a former President may not 
block compliance with the Presidential Records Act where the 
incumbent President has declined to assert privilege and has 
authorized the release of the requested documents.\96\
---------------------------------------------------------------------------
    \96\Trump v. Thompson, No. 21-cv-2769 (D.D.C. Nov. 9, 2021) at *20.
---------------------------------------------------------------------------
    Mr. Trump has appealed the district court's adverse ruling. 
But resolution of Trump v. Thompson will not resolve Mr. 
Clark's undifferentiated claims of privilege. However Trump v. 
Thompson is resolved, it will not change the fact that Mr. 
Trump did not clearly invoke executive privilege with respect 
to the information sought by the Select Committee's subpoena to 
Mr. Clark. Nor would it alter Mr. Clark's obligation to appear 
for his deposition and assert executive privilege with respect 
to specific questions and documents. Nor would any ruling pull 
within the privilege testimony outside the limited sphere of 
executive privilege defined by the Supreme Court in U.S. v. 
Nixon and its progeny. In short, even a dramatic reversal and 
resounding victory for Mr. Trump in the Trump v. Thompson case 
would not justify Mr. Clark's defiance of the subpoena.
    Mr. Clark has cited no authority for the proposition that 
he may avoid a subpoena on the ground that the law--on an 
unrelated issue in litigation that does not involve or 
implicate him might change in his favor with the passage of 
time. As the Supreme Court noted, a congressional subpoena is 
not ``a game of hare and hounds, in which the witness must 
testify only if cornered at the end of the chase.''\97\ Mr. 
Clark was required to testify and produce documents. His 
failure to do so constitutes contempt.\98\
---------------------------------------------------------------------------
    \97\Bryan, 339 U.S. at 331.
    \98\The Select Committee did not accept the ``proposal'' set forth 
by Mr. Clark's attorney in November 29, 2021, correspondence with the 
Select Committee, whereby Mr. Clark would testify only at a public 
hearing before the full Select Committee, and only on topics of his 
choosing. This was not an appropriate accommodation, particularly as 
Mr. Clark had already advised the Select Committee that he had no 
substantive information to share on the topics referenced in the 
proposal. See Appendix, Ex. 4, at p. 11 (``Mr. Clark had nothing to do 
with the January 6 protests or incursion of some into the Capitol.''); 
Appendix, Ex. 11, at p. 4 (``Mr. Clark had zero involvement in the 
events of January 6th'').
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D. Precedent Supports the Select Committee's Position to Proceed with 
        Holding Mr. Clark in Contempt

    An individual who fails or refuses to comply with a House 
subpoena may be cited for contempt of Congress.\99\ Pursuant to 
2 U.S.C. Sec.  192, the willful refusal to comply with a 
congressional subpoena is punishable by a fine of up to 
$100,000 and imprisonment for up to 1 year. A committee may 
vote to seek a contempt citation against a recalcitrant 
witness. This action is then reported to the House. If a 
resolution to that end is adopted by the House, the matter is 
referred to a U.S. Attorney, who has a duty to refer the matter 
to a grand jury for an indictment.\100\
---------------------------------------------------------------------------
    \99\Eastland v. United States Servicemen's Fund, 421 U.S. 491 
(1975).
    \100\See 2 U.S.C. Sec.  194.
---------------------------------------------------------------------------
    The Chairman of the Select Committee repeatedly advised Mr. 
Clark that his claims of privilege are not well-founded and did 
not absolve him of his obligation to produce documents and 
provide deposition testimony. The Chairman repeatedly warned 
Mr. Clark that his continued non-compliance would put him in 
jeopardy of a vote to refer him to the House to consider a 
criminal contempt referral. Mr. Clark's failure to testify or 
produce responsive documents in the face of this clear 
advisement and warning by the Chairman constitutes a willful 
failure to comply with the subpoena.

                     SELECT COMMITTEE CONSIDERATION

    The Select Committee met on Wednesday, December 1, 2021, 
with a quorum being present, to consider this Report and 
ordered it and the Resolution contained herein to be favorably 
reported to the House, without amendment, by a recorded vote of 
9 ayes to 0 noes.

                         SELECT COMMITTEE VOTES

    Clause 3(b) of rule XIII requires the Select Committee to 
list the recorded votes during consideration of this Report:
    1. A motion by Ms. Cheney to report the Select Committee 
Report for a Resolution Recommending that the House of 
Representatives find Jeffrey Bossert Clark in Contempt of 
Congress for Refusal to Comply with a Subpoena Duly Issued by 
the Select Committee to Investigate the January 6th Attack on 
the United States Capitol favorably to the House was agreed to 
by a recorded vote of 9 ayes to 0 noes (Rollcall No. 2).


                     Select Committee Rollcall No. 2
                Motion by Ms. Cheney to Favorably Report
                       Agreed to: 9 ayes to 0 noes
 
------------------------------------------------------------------------
                          Members                               Vote
------------------------------------------------------------------------
Ms. Cheney, Vice Chair....................................          Aye
Ms. Lofgren...............................................          Aye
Mr. Schiff................................................          Aye
Mr. Aguilar...............................................          Aye
Mrs. Murphy (FL)..........................................          Aye
Mr. Raskin................................................          Aye
Mrs. Luria................................................          Aye
Mr. Kinzinger.............................................          Aye
Mr. Thompson (MS), Chairman...............................          Aye
------------------------------------------------------------------------

                  SELECT COMMITTEE OVERSIGHT FINDINGS

    In compliance with clause 3(c)(1) of rule XIII, the Select 
Committee advises that the oversight findings and 
recommendations of the Select Committee are incorporated in the 
descriptive portions of this Report.

                  CONGRESSIONAL BUDGET OFFICE ESTIMATE

    The Select Committee finds the requirements of clause 
3(c)(2) of rule XIII and section 308(a) of the Congressional 
Budget Act of 1974, and the requirements of clause 3(c)(3) of 
rule XIII and section 402 of the Congressional Budget Act of 
1974, to be inapplicable to this Report. Accordingly, the 
Select Committee did not request or receive a cost estimate 
from the Congressional Budget Office and makes no findings as 
to the budgetary impacts of this Report or costs incurred to 
carry out the Report.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    Pursuant to clause 3(c)(4) of rule XIII, the objective of 
this Report is to enforce the Select Committee's authority to 
investigate the facts, circumstances, and causes of the January 
6th attack on the U.S. Capitol and issues relating to the 
peaceful transfer of power, in order to identify and evaluate 
problems and to recommend corrective laws, policies, 
procedures, rules, or regulations; and to enforce the Select 
Committee's subpoena authority found in section 5(c)(4) of 
House Resolution 503.

                                APPENDIX

    Exhibits referenced above are as follows:

          1. Subpoena to Jeffrey B. Clark.
          2. Transcript of November 5, 2021 Deposition of 
        Jeffrey B. Clark.
          3. Staff Email to Counsel for Jeffrey B. Clark on 
        November 3, 2021.
          4. Letter from Counsel for Jeffrey B. Clark to 
        Chairman Thompson on November 5, 2021.
          5. Letter from Department of Justice to Jeffrey B. 
        Clark on July 26, 2021.
          6. Staff Email to Counsel for Jeffrey B. Clark on 
        November 5, 2021.
          7. Email from Counsel for Jeffrey B. Clark to Select 
        Committee Staff on November 5, 2021.
          8. Letter from Chairman Thompson to Counsel for 
        Jeffrey B. Clark on November 5, 2021.
          9. Letter from Counsel for Jeffrey B. Clark to 
        Chairman Thompson on November 8, 2021.
          10. Letter from Chairman Thompson to Counsel for 
        Jeffrey B. Clark on November 9, 2021.
          11. Letter and Memo from Counsel for Jeffrey B. Clark 
        to Chairman Thompson on November 12, 2021.
          12. Letter from Chairman Thompson to Counsel for 
        Jeffrey B. Clark on November 17, 2021.
          13. Letter from Counsel for Jeffrey B. Clark to 
        Chairman Thompson on November 29, 2021.
          14. Letter from Counsel for Jeffrey B. Clark to 
        Chairman Thompson on November 29, 2021.
        
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