U.S. House Speaker John Boehner (R-Ohio) on Monday called for redirection of funds from the Justice Department to Congress to pay for defense of the Defense of Marriage Act in court as he made public his decision to hire a U.S. solicitor general from the Bush administration to defend the anti-gay statute.
In a letter dated April 18 to House Minority Leader Nancy Pelosi (D-Calif.), Boehner calls for cutting funds from the Justice Department to provide money to the House general counsel to pay for congressional costs to defend in court DOMA, the 1996 anti-gay law that prohibits federal recognition of same-sex marriage.
On the same day, Boehner’s office announced that Paul Clement, who served as U.S. solicitor general under President George W. Bush, would assist the House general counsel in taking up defense of DOMA against litigation. Clement is now a partner at the D.C.-based office for the firm King & Spalding, where he manages the national appellate practice.
Boehner made the announcements on the deadline day for the House to decide whether or not to intervene in one case challenging DOMA, Windsor v. United States, which was filed by the American Civil Liberties Union and is pending before the U.S. District Court of Southern District of New York. The House general counsel filed a notice of its intent to intervene on Monday.
In his letter to Pelosi, Boehner writes that funds should be redirected from the Obama administration to Congress to pay for expenses that the speaker says would have been more rightfully incurred by the Justice Department.
“Obviously, DOJ’s decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA,” Boehner writes. “It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not DOJ, defending DOMA.”
On Feb. 23, U.S. Attorney General Eric Holder notified Congress that President Obama determined DOMA was unconstitutional and that the Justice Department would no longer defend the anti-gay law against litigation in court. Following a 3-2 party-line vote in March by the Bipartisan Legal Advisory Council, Boehner directed the House general counsel to take up defense of DOMA in place of the administration.
In his letter, Boehner writes that the Justice Department would be in a better position to defend DOMA — both in terms of resource allocation and in expertise of personnel — but adds the administration’s decision to drop defense of the anti-gay law leaves Congress no other option but to face “that additional burden and cost.“
“I would also point out that the cost associated with DOJ’s decision is exacerbated by the timing of this decision,” Boehner writes. “Most of these cases are in the middle of lower court litigation and not ripe for Supreme Court review. Had the Attorney General waited until the cases were ripe for certiorari to the Supreme Court, the costs associated with the House defense would have been exponentially lower.”
Obama dropped defense of DOMA in court after litigation against the statute was filed in the U.S. Second Circuit. Since no legal precedent for laws related to sexual orientation exists within this circuit, Obama had the opportunity to examine DOMA with heightened scrutiny, which led to his determination that the anti-gay law was unconstitutional.
Boehner’s letter was in response to a March 11 letter that Pelosi sent to the speaker asking him if he had an estimate for House defense of DOMA and a plan to provide congressional oversight of these expenses. Earlier this month during a news conference, Boehner told the Washington Blade he doesn’t have an estimate on the cost for House defense of DOMA.
In his letter, Boehner asks Pelosi, a sponsor of legislation to repeal DOMA, to join him in backing the redirection of funds from the Justice Department to Congress to defend the anti-gay statute in court.
“I would welcome your joining me in support of redirecting those resources from the DOJ to the House that would otherwise have been necessary expenses on the Attorney General to defend this federal statute,” Boehner writes.
In another letter dated April 18 responding to Boehner, Pelosi writes that the speaker didn’t answer the central question in her initial missive on the total estimated cost for House defense of DOMA.
“Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of hiring outside legal counsel,” Pelosi writes. “Again, I am requesting that you disclose the cost of hiring outside counsel for the 12 cases where DOMA is being challenged.”
Pelosi also maintains that House defense of DOMA against litigation isn’t required and disputes an assertion from Boehner that administration’s decision amounts to the president unilaterally determining the constitutionality of the anti-gay law.
“As you know, only the courts can determine the constitutionality of a statute passed by the Congress,” Pelosi writes.
Finally, Pelosi takes issue with Boehner’s decision to hire Clement as an attorney in the case and says Democrats weren’t informed about the decision beforehand.
“According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was forwarded to the Committee on House Administration, although not to the Democratic members or staff of the Committee,” Pelosi writes. “I would like to know when the contract with Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee.”
One LGBT advocate lambasted Boehner for declaring that Congress should defund part of the Justice Department so that House can take up defense of DOMA.
Joe Solmonese, president of the Human Rights Campaign, said Boehner’s decision amounts to a betrayal of House Republicans promise to work to improve the economy if elected to a majority in Congress.
“The House Republican Leadership continues to show that they’re more interested in scoring cheap political points on the backs of same-sex couples than tackling real problems,” Solmonese said. “As Americans across the country continue to struggle, Speaker Boehner’s prescription has been to keep families he doesn’t like from accessing needed protections. To add insult to injury, he’s now signed on to a right-wing plan to cut funding for the Department of Justice.”
Boehner cannot unilaterally redirect congressionally allocated funds from the Justice Department to the House for the purposes of defending DOMA. Both the House and the Senate would have to approve the fund redistribution legislatively through the appropriations process — and such a measure would need Obama’s signature for enactment.
During a news conference Monday, White House Press Secretary Jay Carney said in response to a question from ABC News’ Ann Compton on Boehner’s call to redirect from funds the Justice Department that the administration would work with Congress on the issue.
“I’m not aware of that [letter],” Carney said. “I don’t any comment specifically on funding. I do know that the day that announced that this year. I spoke about it, but we obviously will work with Congress, if Congress so chooses to move forward.”
Pressed further by Compton, Carney deferred comment to the Justice Department. Both the White House and the Justice Department declined to comment further on the development in response to a request by the Blade.
The total amount of funds that Congress could redirect from the Justice Department to the House general counsel as a result of the Obama administration’s decision to no longer defend DOMA in court remains in questions. In testimony March 1 before the House Appropriations Committee, Holder said the funds that the Justice Department would save by not defending DOMA would be insignificant.
“I’m not sure we save any money, frankly.” Holder said. “The people who would be defending the statute, were we to do that, are career employees of the Department of Justice, who will not be spending their time doing that; they will be spending their time doing other things. I’m not sure that I see any savings as a result of the decision that I announced with the president.”
Boehner taps Paul Clement to defend DOMA
In addition to railing against Boehner’s call to defund part of the Justice Department to defend DOMA, LGBT advocates criticized Boehner for hiring Clement as outside counsel to defend the anti-gay law in court as well as the attorney for taking up the speaker’s cause.
According to his bio on King & Spalding’s website, Clement served as the 43rd U.S. solicitor general 2005 to 2008 and argued more than 50 cases before the U.S. Supreme Court. In private practice, Clement has focused on appellate matters, constitutional litigation and strategic counseling.
In September 2009, the Washingtonian reported that Clement was making $5 million at the law firm — while the average salary for other attorneys at the firm made $1.235 million in 2008. D.C. managing partner J. Sedwick Sollers reportedly wouldn’t comment on Clement’s salary.
Clement didn’t respond on short notice to the Blade’s request to comment on why he was interested in defending DOMA or what his legal fees would cost the U.S. government.
Michael Steel, a Boehner spokesperson, confirmed that the speaker had hired Clement to take on defense of DOMA, but didn’t have information the fees for taking him on retainer.
“The costs will be determined by Mr. Clement’s legal strategy,” Steel said. “Earlier today, the Speaker sent a letter to Rep. Pelosi, the Democratic Leader in the House, urging her to work with us to redirect the necessary funds from the Department of Justice — since they have declined to defend the law.”
LGBT advocates had harsh words for both Clement and King & Spalding for facilitating defense of DOMA in court. Solmonese rebuked the firm’s for allowing Clement to defend the ant-gay law as part of his private practice.
“The firm of King & Spalding has brought a shameful stain on its reputation in arguing for discrimination against loving, married couples,” Solmonese said. “No amount taxpayer money they rake in will mitigate this blemish on the King & Spalding name.”
According to HRC, media reports have indicated that Clement’s hourly fees could top $1,000, which could his role in defending DOMA pricey for the U.S. government if the litigation, as expected, takes years to reach the Supreme Court.
James Esseks, director of the ACLU’s lesbian, gay, bisexual transgender and AIDS project, said Boehner’s decision to take on a private attorney to defend DOMA is notable at a time when deficit reduction is a top priority among U.S. leaders.
“It’s striking that Congress has decided at a time of budget cuts that this where they want to spend their money,” Esseks said. “They want to spend taxpayer dollars to try to defend a law that clearly is unconstitutional instead of trying of getting rid of the law, which they can easily do.”
Esseks said he doesn’t have an estimate for how much retaining Clement would cost the U.S government, but — noting his job history and his position at a prestigious law firm — said Clement’s legal fees would be probably be “pretty high.”
But Gary Buseck, legal director for Gay & Lesbian Advocates & Defenders, which has two pending cases challenging DOMA — Gill v. U.S. Office of Personnel Management and Pedersen v. U.S. Office of Personnel Management — had more mild words for Clement.
“Paul Clement is obviously a well-respected attorney,” Buseck said. “We’re happy the House has chosen its counsel so that the DOMA litigation can once again go forward.”