Clement’s Departure

As some of you pointed out before I got distracted with the aura of actually having Democratic Presidential candidate(s) in my state, Paul Clement is done. He’s not going to stick around and lend his purportedly considerable skills defending the Bush Administration before SCOTUS anymore.

Today, the Department of Justice announced that Solicitor General Paul D. Clement will end his current service to the Department on June 2, 2008.


Clement’s tenure of over seven years in the Office of the Solicitor General is the longest period of continuous service in that office by an individual who served as Solicitor General since Samuel Phillips, who served from 1872-1885.


During his time in the Office of the Solicitor General, Clement argued 49 cases before the Supreme Court, prevailing in the vast majority of them. Landmark cases argued by Clement include Tennessee v. Lane, McConnell v. FEC, Rumsfeld v. Padilla, Gonzales v. Raich, and Gonzales v. Carhart. He also argued many other significant cases in both the Supreme Court and the lower courts involving novel and important legal issues concerning the conduct of the War on Terror.

The Office of the Solicitor General is responsible for conducting all litigation on behalf of the United States in the Supreme Court, and for supervising litigation in the federal appellate courts. Oral arguments for the 2007 Supreme Court term were completed in April 2008. The Department will submit all of its briefs for action during this term by the end of May 2008.

Prior to today’s announcement, Clement informed the President and the Attorney General of his plans to resign.

Let me just note several things. First, I still very strongly believe that Paul Clement is the guy about whom Sidney Blumenthal wrote last year,

Yet another Bush legal official, even now at the commanding heights of power, admits that the administration’s policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we’ve done has been illegal." He adds, "Not everything has been ultra vires" — a legal term referring to actions beyond the law.

That is, as early as last June (I suspect) Paul Clement recognized he was on sinking ship–and recognized that a good many things the Bush Administration had done were illegal.

The release–by noting that SCOTUS is all done for the year, save waiting for final briefs, which are all due before Clement leaves on June 2–suggests Clement simply picked his departure based on the SCOTUS season. Though it’s not that different from the timing of Ted Olson, and he reportedly left because he was miffed that the Administration hadn’t shared some of the OLC opinions (given the timing, probably relating to torture) that Olson got stuck defending.

But consider these other events that, by leaving at the beginning of June, Clement will avoid any association with:

June 23: Hearing before Judge John Bates on Contempt for Harriet Miers and Josh Bolten

SCHEDULING ORDER: Plaintiff’s motion for partial summary judgment due by 4/10/2008. Defendants’ opposition thereto, along with any dispositive cross-motions, due by not later than 5/9/2008. Plaintiff’s reply in support of partial summary judgment, along with any opposition to the dispositive cross-motions, due by not later than 5/29/2008. Defendants’ reply in support of any dispositive cross-motions due by not later than 6/12/2008. Motion Hearing set for 6/23/2008 10:00 AM in Courtroom 8 before Judge John D. Bates. SEE TEXT OF THE ORDER FOR MORE DETAILS. SO ORDERED. Signed by Judge John D. Bates on 3/21/08. (lcjdb1) (Entered: 03/21/2008)

Normally, I wouldn’t think this hearing would be resignation-worthy. After all, John Bates tends to bend the law in favor of this Administration. He just told the Democrats to hold off (until June 24) on suits against McCain for breaking his own damn campaign finance laws. He’s the guy who dismissed the suit against Cheney’s Energy Task Force. And he’s the guy who dismissed the Wilsons’ suit against all the Administration officials who deliberately outed Valerie. So it’s not like Clement has to worry about a tough hearing (and he probably wouldn’t argue this one anyway).

But the Administration’s case for invoking privilege was based on a particularly specious Clement opinion.

Paul Clement, in his explanation of why BushCo could invoke executive privilege in the USA scandal, claimed that the President has "nondelegable Presidential power" "to nominate or to remove U.S. Attorneys." It’s a claim repeated (though in more humble form) by Fred Fielding in his invocation of executive privilege.

In the present setting, where the President’s authority to appoint and remove U.S. Attorneys is at stake, the institutional interest of the Executive Branch is very strong.


Your letter does not dispute these principles.


The letter does not challenge the exclusive character of the President’s appointment and removal power, nor does the letter attempt to establish a constitutional basis for the Committees’ inquiry into this matter.

Now, IANAL. But, particularly given Fielding’s retreat on this issue, I believe BushCo is on shaky ground on this issue and the Democrats really need to start pointing that out. After all, the Constitution itself disputes Clement’s and Fielding’s claims that Bush’s appointment power is non-delegable and exclusive.

but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

But don’t take my word for it. This whole scandal started when BushCo had Brett Tolman sneak a provision into the PATRIOT Act to take appointment power away from judges and give it to the AG. In other words, the history of this scandal itself proves Clement and Fielding’s claim to be false, because it proves Congress does have the authority to dictate how appointments are made (and BushCO didn’t make a squeak of complaint when Congress rearranged the appointment powers last year).

This kind of puts Clement in the realm of John Yoo-type hackery–arguments so bad that my sorry old NAL arse can poke big holes through them. This is probably not why Clement wants out before June–but you never know. It was a pretty crappy argument.

June 5: Khalid Sheikh Mohammed Shows Up for His First Show Trial Appearance

This date I find much much more likely to have caused Clement’s departure.

The chief judge of the Guantánamo Bay war court has set June 5 for the first court appearances of reputed 9/11 mastermind Khalid Sheik Mohammed and four alleged co-conspirators.

The judge, Marine Col. Ralph Kohlmann, notified military defense attorneys by email Wednesday afternoon that he would preside over the case himself. He scheduled arraignment of the five men at the U.S. Navy base in southeast Cuba.

That date is likely to precede a U.S. Supreme Court ruling on whether Guantánamo detainees are entitled to challenge their detention in civilian courts, expected in late June before the high court ends this year’s term.

Mind you, it’s not like Clement would have to go before the Show Trial to represent the government in this hearing, either. But if I were the kind of lawyer particularly attuned to how many things the President I worked for did that were illegal, I might want to have nothing to do with the Gitmo show trials.

Of course, I could be totally wrong. Perhaps Clement just wants to spend time with his family (though the press release thankfully spared us that sorry excuse).

21 replies
  1. Mary says:

    I don’t know why anyone would call Rumsfeld v. Padilla a ”landmark” case, since all it did was duck substantive issues and switch venue from the 2nd to the 4th circuit and send things back through the works.

    I’m not sure what you are getting at on the appointment issue, though, bc I think Clement is right on that one. What you are talking about in the Patriot act only applies to interim appointments, where the position is left vacant and needs to be filled immediately so there is no gap. And while there is some lower court case law to the effect that an interim USA is an inferior officer, I’m not sure that a USA really falls under that case law and imo you can make a good case that a USAtty is a principal officer.

    But that shakier case aside, by statute if nothing else only the President can appoint or remove a USA (as opposed to an interim USA affected by the Pat Act provisions). 28 USC 541.

    That’s why I pitched a fit as soon as the story broke and Bush’s statement from foreign shores was the he ”didn’knownuttin” about the firings and his spokespersons began that incessant spin. (kos diary…..574/312680 ) Bush is the only one who had legal authority to remove those USAs. [This ties a bit to the OLC opinion involving Gonzales’ attempts to ”delegate” to Sampson and Goodling and the determination that he would have to be presented a written record and sign off and the very same rationale is implied to apply to Presidential delegation in that opinion IIRC]

    So if Bush truly knew nothing about it, the removals were all illegal. While it hasn’t come up in Executive Privilege context that I know of, there just aren’t any privileges to my knowledge that can attach to direct knowledge of fraud or crime. Attorney/client privilege falls to an attorney being a direct witness to such illegal behaviour. E.g.,…..i_n9249686 So if Bush didn’t know about the firings, they were a crime and people should be able to be compelled.

    OTOH, if Bush lied and had his spokespersons lie and he not only knew about the firings, he was the one who directed the firings then that is interesting too. And it’s clear that as soon as Bush got back to the US and in a room with Fielding, Fielding set Bush straight on what should be his *new* answer to questions about the firings. That new answer was to vaguely, and without ”claiming” his direct role and participation, to say, ”USAtty’s serve at the will of the President.”

    I was very disappointed when no one, in the hearings or the media, nailed down questions like: did Bush know about the firings, did he participate in them, did he follow the advice of the OLC opinion and require a written listing that he signed off on, did he lie about not knowing about the firings, why did he lie about not knowing about the firings, etc. Because you then have another set of crime/fraud issues. One dealing with the parsing and very likely outright fibs told to Congress (criminal) and another dealing with the issues of removal for illegal cause and obstruction – – so again issues about the ability to invoke privilege imo fwiw.

    With respect to Clement leaving, I don’t think he cares much about the Bates hearing or the GITMO cases or being ”tied” to those cases. There isn’t really any downside to being a torture advocate, is there? And he already has a track record of going before the Sup Ct when he argued Padilla and Hamdan and, with (i) all the open information from people like Coleman, Cloonan and Fallon on torture available to and through DOJ; (ii) all the information on CIA blacksites and waterboarding and torture throughout the DOJ; (iii) the pending Arar case naming Ashcroft and Thompson so very known throughout DOJ; (iv) the torture deaths of detainees like Dilawar which Gall had been peddling for a long time; etc. – with all that, Clement goes before the Sup Ct and argues with all his reputation and credibility that the Bush Administration does not do things like torture.

    The next day the Abu Ghraib pictures come out, but more than that, over the years, disclosure after disclosure has shown that he either was deliberately not telling the truth to the court or he deliberately failed to exercise any due diligence to determine the factual underpinning of what he was representing to the court. But did it matter? Nope. Of course not. Executive torture cover ups involving fibbiness to the courts is what our DOJ does and who our lawyers at Justice are. And the courts don’t care. And the American people don’t care. And the local bar associations don’t care. The law schools care – they are all just chomping at the bit to have their very own torture lawyers on staff so that their students can go out and be competitively corrupt.

    • emptywheel says:


      It’s very simple. Congress was investigating the firing of USAs so they could be replaced by interim USAs. It was investigating the appointment of Tim Griffin. Even if you’re only talking about the appointment of Tim Griffin–which is the most notable event which ties Harriet Miers to the firings–you’re in the land of Congressional legislation because Griffin was not appointed as he was except pursuant to Congressional legislation.

      Throughout the investigation, Congress was wrestling with whether and how to overturn the PATRIOT provision–and whether they needed some other means to appoint interims. It was all about legislation. And clearly BushCo didn’t dispute Congress’ ability to weigh in, because BushCo had already gotten Congress to do so once.

    • Professor Foland says:

      IIRC, officially nobody was “removed”. They all “resigned.” So I think Bush’s minions are in the clear on that. The USA’s could have refused to resign–only then would it matter whether the President was involved in forcibly removing them.

      Ne c’est pas?

    • looseheadprop says:

      And while there is some lower court case law to the effect that an interim USA is an inferior officer, I’m not sure that a USA really falls under that case law and imo you can make a good case that a USAtty is a principal officer.

      There was extensive motion practice in connection with the Libby case which established htat PatFitz was an inferior officer. He was both a USA ans a SPecial COunsel at the time.

  2. FrankProbst says:

    Twenty bucks says they try to use this as an excuse to postpone the contempt hearing.

  3. Mary says:

    I understand that they were talking about replacing with interim USA in most instances. But to get to replacing (via nomination proces – which is solely the President or interim appointments, which were switched to AG from judges) you have to have some fired. And I think Clement is right there, that nomination and firing of USAs are statutorily in the domain of the President only. Appointment of interim USAs was set up via the Pat Act to be by the AG.

    But the appointment of the interim USAs, while they may have been political in bent (as are a lot of regular USA nomations) isn’t illegal or actionable as best I can think or tell. OTOH, removal of a USAtty bc they wouldn’t kill or bring cases for political purposes is. So the discussions would probably be tied, but IMO the obstruction element stems primarily from the firing of someone non-compliant to political pressure on their cases, not putting in someone that you believe will be more compliant.

    Meanwhile, back when Clement was arguing that we don’t torture, the Navy was also investigating this “interrogation” death:…..s-in-iraq/

    …and the death of Manadel Jamadi during an interrogation after his head was beaten with a stove at Abu Ghraib in November 2003.

    Clement could and did stand in front of the Sup Ct and make his arguments, while a cadre of lawyers in the WH and Pentagon were authorizing things like burying someone alive and loyal Bushies were interrogating by beating someone’s head with a stove. So I don’t think he exactly shames easily.

    • emptywheel says:


      You’re misrepresenting my argument here, twice now. I absolutely agree that the President has the ability to appoint and fire USAs. But Clement, by claiming that was the issue, was simply trying to define the issue as something that the legislative facts clearly hold it wasn’t to distract from the record as it stands.

      To deny that Congress had a proper legislative interest in this you’d have to 1) deny that they had twice passed legislation–uncontested by the President–that were central to the events in question and 2) ignore that when they first asked for these documents, they had active legislation in question, one that even as they passed it, they considered modifying.

      Also, you’d have to look at the actual documents they were seeking. While you might be able to argue that Congress couldn’t have Harriet’s original lists on firing people, you’d have a much harder time you couldn’t get the many documents pertaining to the reasons for appointing Tim Griffin, which was until very late in the process one of the central events of concern (Lam being the other–and I think you might make an argument there for privilege). I would argue, too, that until everyone appointed under PATRIOT was removed late last year–particularly since Bush was extending their tenure by yet another questionable interpretation that Congress contemplated addressing–Congress had every right to ask for details about those instances.

  4. scribe says:

    EW – re spending time with his kids, the AP version of the story did note that. He has a couple.

    Clement is a sophist of the first order, hell, of world-class. He’s about 41 or 42 now, so he wants to get out in anticipation of making some serious coin (college funds, among other stuff) and waiting for a Repug resurgence in 10 or 15 years, when he can be appointed to the next Repug S.Ct. opening.

    And do more damage for another 20 or 30 years thereafter.

    As to the contempt case – that has nothing to do with the Sol Gen’s office. It’s a trial court matter – appellate specialists Kinda look down their noses (over their bifocals) at us trial types. It’s a different world.

    Frankly, Judge Bates or whatever his name is should get a brief placed before him on the contempt of Congress case which indicates that his failure to enforce a statute with mandatory language would surely not constitute ”good behavior”. Just a reminder to his Repug ass that, while the President appointed him, only the Congress can fire him.

  5. kspena says:

    OT-for those interested in examples of bush’s blood lust might find this interesting from Gen Sanchez’ book:

    “Sadr is the one Shia leader who has opposed the U.S. occupation since the overthrow of Saddam Hussein and has, in return, been detested by American military commanders, politicians and diplomats. But Lt. Gen Ricardo Sanchez, the U.S. commander in Iraq in 2003-4, says in his recently published memoirs Wiser in Battle that President George Bush personally ordered Sadr to be captured or killed.

    Bush gave the order during a video conference on April 7, 2004 just after the U.S. envoy Paul Bremer had started a crackdown on the Sadrists and they had responded with an uprising during which they had taken over much of southern Iraq.

    In General Sanchez’s account, Bush said: “The Mahdi Army is a hostile force. We can’t allow one man [Sadr] to change the course of the country. At the end of this campaign Sadr must be gone. At a minimum he will be arrested. It is essential he be wiped out.”

    In an extraordinary outburst, recorded by General Sanchez, Bush said: “Stay strong! Stay the course! Kill them! Prevail! We are going to wipe them out! We are not blinking!”

  6. MarieRoget says:

    OT- posted this @ the very tail end of the “Conyers to Rove” thread, plus emailed a more elaborate version of it to John Conyers this morning w/a copy of ew’s post:

    —Above all, Conyers needs to hold some kind of team meeting on how to proceed w/a witness as important as Rove. No fumbling the ball on this one- game plan needs to be in place. Artur Davis, Alabamian who knows the Siegelman situation well & has the facts @ his fingertips, should be point man. Conyers needs to put his foot down on that**

    Here’s one possible line of persuasion:
    -During 1st round of questioning @ least half the Dems give over their minutes to Artur Davis. All available Dem committee members will show up for Uncle Karl, so that’ll be plenty of mins.
    -On 2nd round Dems retain all their individual minutes, & really have a chance to skewer Rove by building on the careful groundwork laid by Davis. All Dem committee members get to look brilliant by using previous Davis q&a to dismantle Rove’s answers.
    -3rd round would be great w/a witness as meaty as Rove (pun intended). Scheduling this hearing so there is a decent amount of time for it would be nice, if @ all possible.

    **Conyers might quote a little background from Artur Davis’ Congressional website bio:

    “From 1994 to 1998, Congressman Davis established a 98 percent conviction rate as an Assistant United States Attorney for the Middle District of Alabama fighting white-collar criminals and the scourge of drugs and violence on our streets and in our neighborhoods.” (my bold)—

    • skdadl says:

      Great plan. There are others I admire, but I love listening to Davis’s questions — he builds so clearly, and with such snap. Plus the first round would be fine drama if all the members showed up.

      • MarieRoget says:

        Thanks. Since I’ve got some extra time this a.m., think I’ll also fax the email elaborating on it to Conyers, along w/ew’s “Conyers to Rove” post. Faxing seem to get better responses for me, instead of the usual email robo-response.

  7. Anna says:

    EW unable to put my questions for your Salon today under your “spies for hire” blog. Will not be able to join your important Salon today,

    Questions. Col Karpinski has stated that there were foreign individuals at Abu Grarib directing to torture taking place at that prison. What can he tell us about Col. Karpinski’s claims?…..ormer_head

    2. Just after 9/11 Carl Cameron of Fox news reported in four parts that there were “allegedly” several hundred young Israeli spies operating in the U.S. before the attack on 9/11. The media coverage on this issue was quickly shut down and that four part report was quickly pulled from Fox News website. What can your guest tell us about this “alleged”investigation into Israeli spies?

    3. Also in that four part report Cameron reported that Israeli based communication and data mining companies (Amdocs which supposedly has access to 95% of all U.S. phone companies billing records and Comverse Infosys) may have provided a back door in their systems to foreign spying which may have jeopardized U.S. National Security. What can he tell us about this?

    4. What can he tell us about that meeting in Italy with Ledeen, Rhode, larry Franklin, (now serving a prison sentence), Manucher Ghorbanifar which supposedly had to do with Iraq and Iran?

    ……I thought Colin Powell forbid these folks to meet after that meeting?


    5. Can he address why we are not hearing much about the U.S. Vs. Rosen investigation and trial in the MSM or the so called “progressive” blogosphere? Few Americans know about this investigation and trial which has to do with Aipac’s Rosen and Weissman “allegedly” handing over highly classified intelligence having to do with Iran to Israeli officials.

    U.S. vs. Rosen indictment…..ug2005.htm

    I keep calling the Alexandria Division of the U.S. District Courts since this investigation and trial having to do with Aipac’s prior officials allegedly handing off classified intelligence to Israeli Officials seems to be “off limits” or territory too dangerous or intimidating for them MSM and “progressive” blogosphere to cover. The last update from on of the folks who answer the phone at that division is that there are hearings reviewing the classified documents having to do with the case and that there are two motion hearing open to the public on May 20th and May 29th.

    What can you tell us about this case and the intelligence involved?

    6. What can he tell us about the status of Phase II of the Senate Select Committee on Intelligence which has to do with the investigation of the pre-war intelligence used to lie our nation into the invasion of Iraq? From my understanding Republican Senator Pat Roberts did everything he could do to divert, delay and dilute Phase I and Phase II

    ……..Has the Office of Special Plans been thoroughly investigated? Will Americans ever witness anyone held accountable for this false pre-war intelligence?

    7. What can he tell us about the Niger Documents? Will anyone be held accountable for these documents that were immediately debunnked by the director of the IAEA (International Atomic Energy Agency) Mr. El Baradei at the UN in early March of 2003 just before the invasion. (I will never forget that day and how the MSM basically ignored what El Baradei had to say about the validity of these documents as the Bush administration marched ahead with their illegal and immoral invasion.

  8. 4jkb4ia says:

    My Dad, teacher of the Supreme Court, says “Nothing to see here, he has nothing more to do, this is normal”.

  9. 4jkb4ia says:

    My Dad’s academic specialty is the Court. He does not teach any of the justices *g*

  10. freepatriot says:

    we’ve been using the “Rats Leaving A Sinking Ship” analogy to describe the repuglitard migration away from presnit george

    but there is one important difference between rats and repuglitards

    rats don’t leave incriminating written evidence behind

    oh, and did I mention that there ain’t no Statute of Limitation on Crimes Against Humanity

    so there’s that …

  11. JohnLopresti says:

    The way the Yoo 81pp memo was released to the public was a process of barter between congress and the executive. The Yoo ostensibly verbatim one side of the interview published in Esquire recently had an interesting passage about wiretapping, in which Yoo almost opines on material which is not in the public sphere. I would expect Clement to have read much similar material not in the public’s view. The Supreme Court has remained relatively evenly split on the increasing quantity of cases in which the administration has tried to hide information. I have found Clement at his nadir defending administration tactics which have relied on hiding information, and there are judicial canons banning obscuration of evidence. Currently congress is preparing a new law addressing the secrecy of information which has become a key element in governance style of this administration. As the election nears Republicans have to deal with the legacy of the current leadership in their party. Already, three early replacement elections have seen former Republican posts filled with voters’ choice of Democrats instead. If Yoo represents a key plank in the administration’s approach to the judiciary, that, too, must seem antithetical to what a Solicitor General would opt to have as a working ambience; Yoo would prefer the courts be less equal than the other two branches.

    I agree with the dates suggested, as impending problems for the current Solicitor General, but there has been an avalanche of similar disproportionately impossible initiatives he has had to defend. I have read a few transcripts of Clement’s performances at Scotus, some until I could have replicated the scripts from memory, interruptions, stammers, leading questions, political jivetalk, and all. I am not sure he is a superior barrister, or even a clever one. I think his politics are conservative, and knowledge of history ample, but I would not rank his execution of the job as stellar. The adminsitration he served was ungainly, at best. Yet, as the final spirals of the administration’s circuitous illogic play out, the difficulty of defense becomes ever more problematic for the administration’s Solicitor General. Boehner is clamoring for some soul searching, and a prospective repudiation at the polls this autumn for the Republicans will engender more such introspection. I think Clement can afford to select his closing argument, and would like to increase the distance between his career and some of the bankrupt energies driving the Republicans into the approaching confrontations. I think he might find distasteful arguing yet again the administration’s right to destroy more torture videos, as is being reported.

  12. masaccio says:

    I am loath to read anything into this departure. The new solicitor general will be able to get up to speed on the cases in the pipeline for the next term, and Clement can get on to his new perch in the system, doubtless in one of the firms specializing in Supreme Court appeals. I doubt that any of the major figures in this administration have any sense of honor, or any concern that they will be held to account for their actions.

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