Chaotic final days

‘Assured failure’: Ex-White House lawyer provides new details of final days of Trump’s 2020 election gambit

Pat Philbin gave his first public testimony about the chaotic final days of the Trump presidency.

By KYLE CHENEY

Donald Trump’s deputy White House counsel, Pat Philbin, was nervous.

It was just a few days until Jan. 6, 2021, when Congress was slated to certify Joe Biden’s victory in the 2020 election, and Trump had suddenly resuscitated a plan to replace the leadership of the Justice Department with Jeffrey Clark, a little known DOJ official who Trump expected to mount a sweeping nationwide effort to help him remain in power.

So Philbin called Clark, a colleague from their days in private practice dating back to the 1990s and tried to talk him out of it.

“I tried to explain to him that it was a bad idea for multiple reasons,” Philbin recalled Tuesday at a long-delayed disbarment hearing for Clark. “He would be starting down a path of assured failure … If by some miracle somehow, it worked, there’d be riots in every major city in the country and it was not an outcome the country would accept.”

It was Philbin’s first public testimony about the chaotic final days of the Trump presidency since he left the White House. Though Philbin has spoken to both the Jan. 6 select committee and the federal grand jury that indicted Trump for his effort to seize a second term, no transcript or recording of his remarks has even been released.

Philbin’s description of his interactions with Clark shed new light on the frenzied effort by Trump to remake the Justice Department into a tool of his bid to cling to power despite losing the election — a remarkable new account more than three years after a mob of pro-Trump rioters stormed the Capitol in his name. His testimony followed Richard Donoghue, a former acting deputy attorney general.

Together, the two men described a White House that had let down all guardrails, with conspiracy theories about election fraud reaching Trump, who was an eager recipient of even implausible claims of fraud. Clark, too, embraced some of those claims, they said.

Philbin described feeling relief in the first days of January 2021 when he heard that Trump had ditched plans to appoint Clark as acting attorney general. But he quickly learned in discussions with his boss, Pat Cipollone, and two top DOJ officials — acting attorney general Jeff Rosen and his deputy Richard Donoghue — that the effort had been revived. The men agreed that Philbin should speak to Clark, owing to their decadeslong relationship, and attempt to discern what was happening.

Philbin, who testified for about two hours on Tuesday, described Clark as wildly misinformed about claims of election fraud — countenancing a theory about “smart thermostats” being used to manipulate voting machines — and not sufficiently cognizant of the havoc it would wreak on the country if his plan succeeded. But he said Clark seemed “100 percent sincere” in his beliefs.

“I believe that he felt that he essentially had a duty,” Philbin said. “I think Jeff’s view was that there was a real crisis in the country and that he was being given an opportunity to do something about it.”

When Philbin warned Clark that there would be riots in every major American city if Trump reversed the outcome of the election, Clark responded, “Well, Pat, that’s what the Insurrection Act is for,” Philbin recalled.

Clark, in Philbin’s telling, was referring to a 19th-century federal law that permits the president to use the military to quell civil unrest, an indication that he recognized the grave implications of his efforts. Though it was Philbin’s first time publicly discussing the exchange, the conversation was captured in special counsel Jack Smith’s indictment of Trump — without naming either Philbin or Clark, though the identities of both speakers were easily discerned. On Tuesday, Philbin was asked to elaborate on this discussion.

“I don’t think I said anything on the phone. I just thought that that showed a lack of judgment,” he said. “Triggering riots in every major city in America, you’ve got to be really sure about what you’re doing and have no alternatives … In my estimation, that was not the sort of situation we were talking about.”

Philbin was the second witness to testify in a disciplinary proceeding that could result in the loss of Clark’s license to practice law. D.C. Bar investigators have charged him with attempting to coerce DOJ leaders to embrace false claims of election fraud in order to pressure state legislators to consider reversing Trump’s defeat in Georgia and other swing states. Trump, fuming at his DOJ leadership for what he contended was a failure to pursue fraud investigations, repeatedly flirted with appointing Clark as their leader but ultimately backed down amid a mass resignation threat.

Clark has since been charged alongside Trump in Georgia for their efforts to overturn the election, and Clark was identified by Smith as a co-conspirator in the Washington, D.C. case.

Philbin said the mass resignation threat that caused Trump to back down from Clark’s appointment was partially his idea. He recalled that a similar mass resignation threat from his days as a lawyer in the George W. Bush administration over warrantless wiretapping had similarly affected policy decisions. So he said he advised Rosen to take the temperature of DOJ leadership about how they would react if Trump appointed Clark as acting attorney general.

Nearly every top DOJ official indicated they would resign, a significant factor in causing Trump to back off his plan.

Philbin said he sought to convey these realities to Clark in a last-ditch phone call before a confrontational Oval Office meeting with Trump and his top advisers.

“We talked about some of the theories of fraud that were around. They’d been debunked and there wasn’t really any there-there,” Philbin said. “If the president made him acting attorney general … people at DOJ would probably resign, there’s going to be just a massive wave of resignations. People weren’t going to be following him to pursue these theories of fraud.”

Philbin said he was among those who would have resigned.

“It was not a course of action that I could countenance,” Philbin said. “I thought there was not a justification for it. It was a sufficiently bad idea and unjustified interference with the completion of the Electoral College count. I wouldn’t want to be there in the White House any longer participating in that.”