By Sarah N. Lynch

WASHINGTON, (Reuters) – Jeffrey Bossert Clark was trying to overturn Donald Trump’s presidential election result. He sought to defer one of the most significant water pollution cases in American history.

In 2019, a group of prosecutors under Clark’s supervision at DOJ’s Environment and Natural Resources Division (ENRD) wanted to bring criminal and civil charges against North Dakota pipeline operator Summit Midstream (NYSE:) Partners in the largest-ever inland spill of waste water from oil drilling.

Clark’s push to delay the case prompted fellow prosecutors to take a rare step: They appealed directly to Deputy Attorney General Jeffrey Rosen, the No. According to documents and calendar entries, three sources, including Reuters interviews, the official from the department said that the case should be handled under the Clean Water Act.

In a memo to Rosen, the prosecutors said Clark’s reasoning for wanting to delay the case flew in the face of “decades of case law.” On November 21, 2019, attorneys from the division and the Environmental Protection Agency, including a Trump political appointee, pressed their case in a conference room with Rosen.

“In my years there running very high profile cases, I have never seen an instance where we had to go above and around the assistant attorney general,” said Tom Lorenzen, a former 16-year department veteran who was not involved in the case.

Clark said that the DOJ should await the Supreme Court’s ruling in an unrelated water pollution case, which his coworkers considered to be not related to Summit. Clark also suggested other options, including using federal laws or state statutes that would prevent civil penalties and felony convictions. “I may still wish to take the position that I can properly use my prosecutorial discretion to proceed using a different set of tools,” he wrote Rosen.

Outnumbered, Clark acquiesced. The case proceeded, leading to $36.3 million in criminal and civil penalties against Summit https://www.reuters.com/business/environment/summit-midstream-partners-pleads-guilty-largest-us-inland-spill-oil-drilling-2021-09-22, which pleaded guilty in September 2021.

Clark failed to respond to numerous written and interview questions. Neither Clark nor his attorney responded to questions from Reuters on this incident or the tenure of his Justice Department.

Before his failed bid https://www.reuters.com/world/us/us-senate-democrats-give-new-details-trumps-bid-overturn-election-2021-10-07 to oust Rosen as acting attorney general so he could ascend to that role and launch investigations to help bolster Trump’s bogus election fraud claims, Clark had made a name for himself at DOJ for actions that sometimes veered from those of his colleagues.

The Justice Department’s Inspector General is investigating https://www.reuters.com/article/us-usa-trump-justice/watchdog-to-probe-if-justice-dept-officials-improperly-tried-to-alter-2020-election-idUSKBN29U21E Clark’s election season actions, and the D.C. Office of Disciplinary Counsel is examining his conduct after the 2020 presidential election, said a source familiar with the matter.

On November 5, Clark declined to testify https://www.reuters.com/world/us/ex-us-justice-official-declines-testify-about-his-advice-trump-election-2021-11-05 before the U.S. House Select Committee investigating the Jan. 6 Capitol attack, saying his conversations with Trump are shielded by executive privilege. The committee voted to recommend contempt charges https://www.reuters.com/world/us/us-house-committee-seeks-contempt-charge-trump-era-justice-dept-official-2021-12-02 on Dec 1.

Clark has been tentatively scheduled to appear before a panel on Saturday. There, he will invoke his Fifth Amendment rights against self-incrimination. If the U.S. House finds Clark in contempt, it would be up to the Justice Department whether or not to file charges against him.

Though Clark’s election plotting with Trump garnered headlines, less attention has been paid to his 2-plus-year tenure, during which he tried to use the environmental office to take actions including a failed bid to punish leftwing protesters in Portland after George Floyd’s murder.

CONFIDENTIAL AND BOOKISH

Clark had been familiar with the Environment and Natural Resources Division since his appointment by Trump as Assistant Attorney General in 2017. During the George W. Bush administration, he was a deputy in the division’s appellate section, developing a reputation as a bookish and self-confident lawyer eager to argue cases in every appellate court in the country.

Before his nomination, Clark worked with Rosen at the law firm Kirkland & Ellis. He represented BP (NYSE:) after the Deepwater Horizon spill and the U.S. Chamber of Commerce in its lawsuit challenging the EPA’s authority to regulate carbon emissions. Clark was an attorney in private and challenged the science of climate change. This position led to the Senate delaying his confirmation as Assistant Attorney General until October 2018.

Clark loved to debate colleagues in the DOJ like he was in a courtroom. On his desk, he kept a copy of a book by conservative legal scholar Philip Hamburger arguing that federal agencies are in essence a “deep state.”

Paul Salamanca was one of Clark’s former deputy. He said that Clark was so meticulous to details they once debated over the use an Oxford comma. “There were times when Jeff and I really disagreed,” said Salamanca, who described Clark as both a friend and “formidable” attorney. “Once he reaches a conclusion – it’s not that he won’t ever change his mind – it’s that you have to work hard at it.”

Sam Sankar, a former DOJ trial attorney now with the environmental advocacy group EarthJustice, said the Justice Department should “push back against political expediency.” Clark, he contended, “viewed it in the completely opposite way.”

Late 2018 and early 2019 saw the department strategize how to protect the government against the lawsuit of a Vietnam War Veteran over denials of disability benefits.

The case, Kisor v. Wilkie, turned on a legal doctrine known as “Auer Deference” – a Supreme Court precedent that gives leeway to federal agencies to interpret ambiguities in their regulations. Although the U.S. uses Auer Deference often to defend itself against lawsuits over its rules’ interpretation, conservatives think it allows too much power for the government.

Clark also joined in the fight, writing a memo to the Solicitor general requesting that Auer Deference be overturned. He cited a Biblical reference from Philippians, “fear and trembling,” in one memo, and chided the Civil Division in another for not forcefully fighting to overturn Auer because it likes “winning.”

The Civil Division won the final battle. Francisco didn’t respond to our request for comment.

CASE MONSANTO

A few months after that dust-up, Clark sparred with the U.S. Attorney’s office in Los Angeles, which was investigating Monsanto (NYSE:) For using a banned pesticide to control research crops at the Maui plant, which allegedly exposed workers.

Prosecutors wanted to charge Monsanto with a felony, said two people familiar with the matter, prompting the company’s defense counsel to file a protest with then-Deputy Attorney General Rod Rosenstein in an effort to prevent charges.

Sources said that Clark started laying the foundation to destroy ENRD, even though it was not part of the case. Clark spoke out about Monsanto’s great track record during a March 15th, 2019, meeting with Rosenstein.

Rosenstein agreed with Clark and directed the prosecutors to drop felony charges. Rosenstein refused to comment.

Instead, on November 21, 2019 – the same day Clark’s staff went over his head to convince Rosen to pursue the Summit case – Monsanto agreed to plead guilty to a misdemeanor. Monsanto’s lawyer declined to respond through a spokesperson. The spokesperson for California’s U.S. Attorney’s Office declined to comment.

PORTLAND FOCUS

In the summer of 2020, Portland erupted in 100 days https://www.reuters.com/article/us-global-race-protests-portland-100days/federal-troops-and-street-battles-portland-protests-near-100-days-idUSKBN25V2W3 of protests after Minneapolis police killed George Floyd, with agitators throwing rocks and Molotov cocktails at the federal courthouse.

To quell protests, the Justice Department provided extra security and charged those who damaged or assaulted federal property.

ENRD was not expected to fill a specific role. According to memos Clark wrote to his colleagues and other sources, Clark wanted to identify one.

In an effort to find ways of making Portland more protected, he first considered bringing civil litigation against the city. According to Clark’s July 14, 2020 memo to Barr, he couldn’t find any workable statute. Clark then turned his attention to the protesters when the legal process failed. According to one source, Barr wasn’t aware of Clark’s plans.

Clark established the “ENRD Trespass Team” and tasked lawyers to find ways to use trespass or nuisance laws to go after the protesters with civil actions, records and interviews show.

The federal courthouse “is under constant nightly threat of vandalism or destruction because of the persistent presence of lawless individuals,” Clark wrote in a July 24 memo to prosecutors assigned to the Trespass Team. Team members “will be expected to work aggressively” to protect the courthouse and “restore order” in Portland.

Two sources claim that the team’s prosecutors were confused. While ENRD enforces statutes to protect federal land, they said, trying to flex its muscles in Portland seemed far from the division’s mission.

Clark did not give up. According to memos, Clark demanded names of the arrested and called U.S. attorney in Portland for his thoughts, records from department show.

Billy Williams, an ex-U.S. Attorney from Oregon, resisted. Clark never realized his vision to file nuisance and trespass lawsuits against protesters.

“I never wanted to take an action that didn’t make any sense to me,” said Williams, who said he was surprised to hear from the assistant attorney general of ENRD about Portland. “I thought it would only exacerbate the tension going on.”

Clark was unable to bring up the topic of the Trespass Team being reinstated six months after Trump’s supporters desecrated Capitol.