In DOMA Dispute, Paul Clement Leaves With a Bang


A Washington attorney quits and calls out his colleagues as cowards when his firm drops the case defending the anti-gay marriage law


Former Solicitor General Paul Clement took quite the parting shot at his former Washington law firm Monday when he announced that he would leave King & Spalding so that he could continue to represent House Republicans in their effort to defend the Defense of Marriage Act. In his resignation letter, Clement wrote:

To be clear, I take this step not because of strongly held views about this statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General. Instead, I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters.

Ouch! Calling out your now-former colleagues as cowards is quite the bold move, especially for someone as typically cautious as Clement and especially since he lost neither the client nor the case. Clement will still defend the Marriage Act in federal court and his client will still be Rep. John Boehner, the Speaker of the House. Only Clement will do so with a different supporting cast of lawyers and paralegals and from the tony offices of yet another white-shoe D.C. law firm. As a matter of law, nothing, absolutely nothing, changes on account of Monday's made-for-cable whipsaw. As a matter of politics and protocol, however, boy oh boy is this an uncomfortable way to start the first days of the rest of the DOMA's life.

For its part, the law firm tried to spin the dramatic events as the result more of bureaucracy than politics. "In reviewing this assignment further," wrote King & Spalding's chairman Robert D. Hays Jr. in a letter released before Clement resigned, "I determined that the process used for vetting this engagement was inadequate." Left unknown, as least as of mid-day Monday, was whether the firm's decision to back away from the DOMA defense was politics-oriented (via the Human Rights Campaign), client-oriented (via a conflict of interest or threatened exodus), or partner-oriented (via a revolt among lawyers who chafed at an odious "gag  rule" reportedly included in Clement's DOMA contract).

Just last Friday, in this space, I defended the law firm's right to represent unpopular clients and causes in the face of fierce political attack by the folks at the Human Rights Campaign. They seemed downright giddy Monday in the wake of the law firm's withdrawal and Clement's subsequent resignation. But I'd like to know more from Hays at King & Spalding before I come to any final conclusions. And I have some questions as well, starting with: Why would a touchy firm take the case to begin with? The idea that a law firm as big and as powerful and as established as this would just turn tail and run because of external political pressure from a non-governmental organization is an astonishing one to contemplate, is it not?

Image credit: P.E.N. Photography/flickr

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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