President Obama Agrees with Eric Holder in Support of DOMA Defense Attorney Paul Clement

This morning I posted Attorney General Eric Holder's reaction to the departure of King & Spalding attorney Paul Clement and his former firm's dropping of the defense of DOMA. Clement subsequently joined Bancroft PLLC and will continue defending the case.

Holder Said Holder in response:

"Paul Clement is a great lawyer and has done a lot of really great things for this nation. In taking on the representation–representing Congress in connection with DOMA, I think he is doing that which lawyers do when we're at our best," Holder said during a roundtable with reporters at the Justice Department. "That criticism, I think, was very misplaced."

The White House stands with Holder on the issue, the Washington Blade reports:

“We do share Eric Holder’s views on this,” Carney said. “We think — as we said from the beginning when we talked about — when I did from this podium — about the decision no longer from the administration to defend the Defense of Marriage Act, that we would support efforts by Congress if they so chose to defend it. And so I have nothing to add to the attorney general’s comments.”

Background on King & Spalding's involvement
Attorney General Eric Holder Defends DOMA-Defender Paul Clement [tr]
HRC Confirms it Pressured King & Spalding's Clients on DOMA Issue [tr]
Paul Clement Resigns from King & Spalding [tr]
King & Spalding Firm Backing Out of DOMA Case [tr]
Protests Planned for DOMA-Defending Law Firm [tr]
King & Spalding Firm to Face Backlash Over Defending DOMA [tr]
DOMA Firm's Gag Order Revealed [tr]
DOMA Defense to Cost American Taxpayers $500K, Maybe More [tr]
House Files Motion to Intervene in DOMA Lawsuit [tr]
Former Bush Solicitor General Paul Clement to Lead DOMA Defense [tr]
DOMA-Defending Attorney Paul Clement's Firm is Proud of its Pro-LGBT Policies [tr]


  1. says

    Why all the hubbub, Bud? It’s just the Obama Nostra being their same old two-faced, politically homophobic selves as we’ve tried to tell you going all the way back to McClurkingate.

  2. Chris says

    There shouldn’t be anything controversial about these statements. Everyone should want both sides of this argument to have good representation. Whether you agree with a position or not, that position is entitled to its fair shot in our justice system. This is why even the most vile murderers are entitled to their day in court. Lawyers take unpopular cases all the time. It is a fact of the profession.

    Now, having said that, I have no doubt that in this case Mr. Clement actually agrees with his client, and that is a shame. I’m also pleased that his now former firm saw that it was not in their interest as a business to retain this case. Sending the case (and the attorney) off to another firm without the same conflicts was a wise decision.

    Mr. Holder and President Obama were speaking from the professional standpoint of attorneys, not from a political standpoint agreeing with the defense of DOMA.

  3. MiddleoftheRoader says

    On close examination, the arguments criticizing King & Spalding simply don’t hold up. Eric Holder, the Washington Post, and others are misguided in their criticisms.

    The argument that “everyone is entitled to representation” uniquely resonates when the government is criminally prosecuting someone as a defendant. In that case, no matter how nasty the crime, it makes sense to recognize a right to a lawyer because the power of the state is great; and there may be little (if any) ‘popular support’ for the defendant, which might make almost all lawyers unwilling to represent the defendant. That is why John Adams represented the British soldiers who were criminally indicted in the Boston Massacre case). One can even sympathize with this argument when the government acts in a non-criminal proceeding to take away someone’s rights — a person’s private property, or the custody of a person’s children etc. Maybe even in the non-government context, when one person (or company) sues another person (or company), and some significant loss is possible for the defendant, we can understand the concept that having a lawyer could be important. In all of these situations, if the “right to a lawyer” makes sense, then it doesn’t seem fair to criticize a lawyer who agrees to represent a person (or company).

    But the case of defending DOMA — and cases like it — are very different situations. The government is the defendant; whatever “loss” the government suffers, it will not be imprisoned or fined; the government will continue to survive, and operate, and thrive, if it loses. Most important, because there is still substantial (although minority) ‘popular support’ for DOMA, the departure of King & Spalding from the case would certainly not mean that many other lawyers (and law firms) would be unwilling to step in.

    Let’s change the facts just a little: suppose there was a federal law in effect in 2011 that barred federal recognition of inter-racial marriages (as most states had prohibited such marriages). If King & Spalding had agreed to represent the government in defending this morally reprehensible and constitutionally suspect law in 2011, imagine what the outcry would be! And imagine how its decision to withdraw from representation decision would be applauded by so many as the only correct and moral thing to do. Of course, if we were in 1956 — and King & Spalding had agreed to defend such a law — the public reaction would be very different.

    So here’s the bottom line: same-sex marriage today gets a similar public reaction that inter-racial marriage received in the 1950’s – 60’s. A law firm that had the courage in 1956 NOT to defend a law that denied federal recognition to inter-racial marriages would be applauded today, and would be called “ahead of its time” and “visionary”.

    Perhaps — apart from whether Coca-Cola or other clients complained, and apart from whether its current attorneys or law school prospects objected — maybe just perhaps the powers-that-be at King & Spalding took a deep look inside themselves and decided that the only moral course, the only “ahead of its time” and “visionary” course, was not to defend a law like DOMA that will die (by legislative or judicial action) in the next decade.

  4. ohplease says

    “Everyone should want both sides of this argument to have good representation.”

    Because bigotry deserves a fair shot at being the law of the land.

    “Whether you agree with a position or not, that position is entitled to its fair shot in our justice system.”

    Otherwise all our citizens would just automatically be equal like the Constitution says.

    “This is why even the most vile murderers are entitled to their day in court.”

    Because an un-Constitutional law enforcing bigotry against Americans is a person, just like a defendant in a criminal case.

    “Lawyers take unpopular cases all the time. It is a fact of the profession.”

    And no lawyer has ever turned down a civil case in the history of forever. Every lawyer always takes every case they’re offered. Everybody knows this.

    Seriously, if you’re not on anyone’s payroll, you’re losing out on cashing in on your services as a right-wing shill. You’re no good at it, of course, but none of them are. It’s impossible to defend the nonsensical in the same way it’s not just to defend injustice.

  5. ohplease says

    “Mr. Holder and President Obama were speaking from the professional standpoint of attorneys, not from a political standpoint agreeing with the defense of DOMA.”

    Mr. Holder and President Obama lied for two years when they insisted that they were required to defend DOMA, even as they were constantly called out on these lies, until suddenly they weren’t required to defend DOMA any more, after all.

    They both vigorously supported the defense of DOMA — to the point of saying marriages between same-sex couples were the same as incest or pedophilia — until they were forced to stop doing so themselves. They are, of course, delighted that somebody else is now doing the dirty work they happily wallowed in for two years.

    Citing these two as authorities on anything except lies and corruption doesn’t speak well of the IQ of the one doing the citing.

  6. says


    Obama & Holder didn’t stop defending DOMA because they suddenly decided that defending discrimination was morally wrong.

    They stopped defending the law because they couldn’t win.

    That’s why they’re wishing Clement well.

    Ferchrissakes, Obama doesn’t want you homos marrying. Period. How much clearer does his administration need to make it?

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