The private attorney that U.S. House Speaker John Boehner (R-Ohio) hired to help defend the Defense of Marriage Act in court is set to litigate in favor of the anti-gay law at a different firm after his earlier employer withdrew from participation in defending the statute.
According to a resignation letter obtained by the Washington Blade and other media outlets, Paul Clement, who served as U.S. solicitor general for former President George W. Bush, will take up defense of DOMA at Bancroft LLC now that he left his previous employment at King & Spalding.
“I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides,” Clement writes. “But having undertaken the representation, I believe there is no honorable course for me but to complete it. If there were problems with the firm’s vetting process, we should fix the vetting process, not drop the representation.”
Robert Hays, Jr., chair for King & Spalding, said in a statement earlier in the day that the firm decided to drop facilitation of legal defense of DOMA on Monday after determining the vetting process for taking up defense of the 1996 law, which prohibits federal recognition of same-sex marriage, was inadequate.
“In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate,” Hays said. “Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”
Brendan Buck, a Boehner spokesperson, said the speaker is disappointed that King & Spalding decided to drop defense of DOMA, but is happy Clement is set to continue to work to defend the statute at a different firm.
“The speaker is disappointed in the firm’s decision and its careless disregard for its responsibilities to the House in this constitutional matter,” Buck said. “At the same time, Mr. Clement has demonstrated legal integrity, and we are grateful for his decision to continue representing the House. This move will ensure the constitutionality of this law is appropriately determined by the courts, rather than by the president unilaterally.”
Buck said the House will execute a new contract with Clement to keep him on retainer, but the terms of the contract will be the same as they were when Clement was employed at King & Spalding: a blended rate of $520 an hour and an initial total sum that could reach $500,000.
Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), said the Democratic leader shares King & Spalding’s concerns about the lack of transparency and accountability in the way the contract was executed.
“She also vigorously opposes using half a million taxpayer dollars or any taxpayer resources to defend discrimination, at a time when Republicans in Congress are cutting critical initiatives like education and infrastructure,” Hammill said. “It is now more critical than ever that Speaker Boehner fully account for his decision to sign this half million dollar contract to defend this indefensible statue.”
House general counsel Kerry Kircher contracted with Clement for assistance with defending DOMA in court after the House Bipartisan Legal Advisory Group in March voted 3-2 along party lines to take up defense of the anti-gay law in court. On Feb. 23, U.S. Attorney General Eric Holder announced that President Obama had determined that DOMA was unconstitutional and that the Justice Department would no longer defend the law in court.
Praise for King & Spalding’s decision to drop defense of DOMA came from LGBT advocates on Monday.
Joe Solmonese, president of the Human Rights Campaign, said the firm made the right the decision by discontinuing its agreement to litigation on behalf of the anti-gay law.
“King & Spalding has rightly chosen to put principle above politics in dropping its involvement in the defense of this discriminatory and patently unconstitutional law,” Solmonese said. “We are pleased to see the firm has decided to stand on the right side of history and remain true to its core values.”
On Friday, HRC announced its was launching a campaign to inform clients and potential recruits about King & Spalding’s decision to defend DOMA. Among the components of the planned campaign were ads in mainstream and legal publications, titled “Shame,” which would have featured stories of families affected by the anti-gay law.
Richard Socarides, president of Equality Matters, also praised King & Spalding for recognizing that its participation in the legal defense of DOMA was unacceptable.
“All Americans deserve access to an attorney, but attorneys need to be held accountable for the clients they voluntarily decide to represent,” Socarides said.
Socarides added that Boehner’s decision to hire King & Spalding was unnecessary because the speaker has “an army of in-house legal talent” that could represent his position in favor of DOMA in court.
“If he is serious about cutting the deficit he needs to look to his in-house counsel to represent him in these proceedings, instead of spending taxpayer dollars for a service already provided to his office,” Socarides said.