Former U.S. Solicitor General Paul Clement
Roberto Westbrook / Legal Times
Until this summer, Paul Clement had never been hugged by a client.
He'd been in George W. Bush's solicitor general's office for eight years, building a reputation as one of the most skilled appellate advocates of his generation as he argued the trickiest of cases before the U.S. Supreme Court and appellate courts. But, he acknowledged wryly, "In government, your client tends to be abstract -- the United States of America. Or, slightly less abstract -- the Securities and Exchange Commission."
Clement left as solicitor general in June 2008, before the presidential election that would have put him out of a job. He returned to King & Spalding in November to build a Washington appellate practice in a souring economy, and before a Supreme Court that was still accepting only 75 cases per term.
So in one case he argued on Oct. 14, and another set for Nov. 4, Clement has taken on tough-to-win cases that are far from standard fare for a former law clerk to Justice Antonin Scalia and a Bush-era legal icon: In the first, he argued for enhanced fees for plaintiffs lawyers in a civil rights case, and, in the second, he represents a pair of men who were wrongly convicted in the murder of a retired Iowa police officer.
Which explains the hug.
In June, Clement traveled to Omaha, Neb., to pitch his pro bono services to Curtis McGhee Jr. and Terry Harrington, who had been found guilty in the 1977 murder of John Schweer in Council Bluffs, Iowa. The two, who spent 25 years in prison before being freed in 2003, are suing their Iowa prosecutors for violating their civil rights by falsifying evidence used against them before arrest and at trial. The suit bumps up against strong precedents that give prosecutors near-absolute immunity from liability for their official acts. The case is Pottawattamie County v. McGhee and Harrington.
McGhee and Harrington were skeptical at first about hiring Clement, who had argued for law enforcement officials -- including in immunity cases -- for the Bush administration for so long. "They asked him, 'Why are you taking our case?' " recalled Steve Davis, McGhee's lawyer since 2004. Clement told them that, with his background, he can make the case that, even with prosecutorial immunity, as he put it, "there clearly has to be some conduct on the other side of the line" that does not deserve protecting from liability. By the end of the interview, Davis said, McGhee and Harrington were convinced he was their man. "They were very happy, and gave him a hug," said Davis.
Clement said his trip to Omaha was indeed "a remarkable experience," and the client hug was "a definite first."
The case Clement argued on Oct. 14 for Children's Rights Inc. in Perdue v. Kenny A was also a first for him. The group and its lawyers were seeking a fee enhancement under a federal fee-shifting statute after winning a class action challenge to Georgia's foster care system. The group's executive director, Marcia Lowry, said she sought out Clement after being told by several friends in the public interest sector that "Paul was the best oral advocate they'd ever seen." She also wanted to telegraph that seeking fee enhancements "was not a 'liberal' issue only. I liked the idea of someone with government background and a Republican."
The Georgia case marked Clement's 50th argument before the high court, a rare achievement for a 43-year-old. His first argument was in March 2001 in Saucier v. Katz -- an immunity case, as it happens. Clement's firm threw a party at the Willard InterContinental Hotel Oct. 22 to mark the milestone.
Clement allowed that his first two Supreme Court cases in private practice have been unusual. In both, he noted, the solicitor general's office he once ran has opposed him, even tough it's under new, presumably more liberal, management. But Clement said his conservative political views have not changed. "I haven't had a conversion on the road to Damascus or anywhere else," he said. So what to make of Clement's new clients? "What it signifies is that I'm no longer working for the government," he answered.
Indeed it is the way of Washington and modern legal practice for former government lawyers to add former adversaries or their ilk to their client rosters once they enter private practice. Republican predecessors have surely done it: Kenneth Starr has represented death row inmates, and Theodore Olson is arguing on behalf of same-sex marriage in California. Democrats likewise: Since leaving the SG's office, Walter Dellinger and Seth Waxman have leavened pro bono work and liberal causes with representing corporate giants such as Exxon Mobil Corp. and Wyeth.
Clement's former deputy, Thomas Hungar, who now works with Olson at Gibson, Dunn & Crutcher, cut Clement slack. "The practice mix tends to change when you leave the government," said Hungar, who said Clement's latest cases appeared to be "quite a switch."
Still, some can't resist the irony of Clement's new clientele. "Paul's invitation to join NACDL is in the mail," joked Jeffrey Green of Sidley Austin, who often works with the National Association of Criminal Defense Lawyers and argued against Clement's SG office in criminal cases. "We all have tremendous faith in Paul's intellect and prodigious argument skills as a new member of the dark side."
More seriously, Green said that Clement's role in the Iowa case is another sign that "pro bono cases that no one wanted to touch a few years ago are now being fought over."
Clement has joined that fight even as he juggles a traditional corporate practice that is keeping him busy in lower courts. He's defending Chevron USA Inc. in the 5th U.S. Circuit Court of Appeals against charges that global warming intensified the impact of Hurricane Katrina. And he just filed suit in the U.S. District Court for the District of Columbia against the Food and Drug Administration of behalf of Allergan Inc. to protect marketing of off-label uses for Botox.
Clement pursued the Iowa ex-convicts aggressively, said Davis, the lawyer who represents McGhee. Clement was one of several top lawyers who called as soon as Pottawattamie County was granted.
What impressed him about Clement, he recalled, was that "Paul had read everything, and he had a plan" for how to argue the case. Clement's conservative pedigree was also a factor, said Davis. "Consider where we're going. The Supreme Court is a conservative place," said Davis. "The justices know him, and they'll look at him and say to themselves, 'He's on their side.'"
Clement's brief details a county attorney's office hell-bent on finding the murderer of a popular ex-police officer in an election year, resulting in "the most egregious breach of public trust and resulting deprivation imaginable." Prosecutors shifted their attention from a suspect who was white and had been seen in the area carrying a shotgun, toward a group of blacks. Clement claims a witness was coerced to pinpoint Harrington and McGhee, and jailhouse informants were recruited to make false statements about them.
Both were found guilty and sentenced to life, spending more than 20 years in prison before evidence of the fabrications was unearthed. In 2005, they filed civil rights suits against the county and its prosecutors. The 8th U.S. Circuit Court of Appeals found the prosecutors did not have absolute immunity, because they acted as investigators rather than prosecutors when the fabrications began.
Stephen Sanders of Mayer Brown in Chicago, who has represented Pottawatamie County since 2007 and will argue opposite Clement, said Clement's allegations "are just that -- allegations, and if the case went to trial, we would vigorously contest them."
Long ago, Sanders said, the Supreme Court decided that in the "balance of evils" between prosecutorial misconduct and exposing prosecutors to liability, prosecutors should be shielded. Sanders, an associate, is making his first argument before the high court.
Clement, who almost certainly would be on a Republican short list for a Supreme Court appointment, scoffed when asked whether the more liberal complexion of his caseload is aimed at softening his conservative image for a possible future Supreme Court appointment under a Republican administration. Said Clement, "Anyone who tries to pick clients based on future job prospects is doomed to failure."
