At this time, Choose Ho (no, not that Choose Ho) appointed Paul Clement as an amicus in United States v. Adams.
Accordingly, to help with its decision-making through an adversarial course of, the Courtroom workouts its inherent authority to nominate Paul Clement of Clement & Murphy PLLC as amicus curiae to current arguments on the Authorities’s Movement to Dismiss. See Seila L. LLC v. Shopper Fin. Prot. Bureau, 591 U.S. 197, 209 (2020) (“As a result of the Authorities agrees with petitioner on the deserves of the constitutional query, we appointed Paul Clement to defend the judgment beneath as amicus curiae. He has ably discharged his duties.”) . The Courtroom expresses its gratitude to Mr. Clement for his service and can present Mr. Clement a replica of this Order and the transcript from the February 19 convention.
From time-to-time, the federal authorities declines to defend a judgment in a pending Supreme Courtroom case. In such instances, the Courtroom will appoint an amicus to defend the judgment beneath. In different phrases, the amicus is just not arguing his personal private views on the regulation, however is as a substitute defending what the decrease courtroom did.
This method makes some sense when there’s an precise lower-court opinion. However this method doesn’t make sense in a trial courtroom. The Courtroom appointed Paul Clement to “current arguments on the Authorities’s Movement to Dismiss.” What sort of arguments? The order doesn’t say. Possibly Clement will agree with the federal government. Possibly he will not. Who is aware of? In impact, the Courtroom has appointed Paul Clement to provide Paul Clement’s opinion on the difficulty. Clement is a good friend of the Courtroom, to make certain. However in contrast to most amicus, he’s being elevated to the standing of a celebration. I believe Article III jurisdiction calls for adversity, and appointing an amicus to argue his personal views doesn’t suffice for adversity. For all we all know, Clement will agree with the federal government, and there nonetheless will probably be no adversity.
In candor, I’m a bit befuddled by this determination. I do know Choose Sullivan appointed an amicus within the Michael Flynn case. That’s definitely a precedent, however not a very good one.
There’s one other aspect to debate right here. It’s fairly apparent the Courtroom appointed Clement to have a widely known conservative (doubtlessly) argue in opposition to the Trump Administration. Choose Ho took a web page from the Seila Legislation playbook, through which Circuit Justice Kagan chosen Clement. I described Kagan’s alternative again in 2020:
That alternative fell to Justice Kagan, the Circuit Justice for the Ninth Circuit. And he or she made a strategic determination. Quite than deciding on somebody like Deepak Gupta, a steadfast defender (and former worker) of the CFPB, she seemed to the precise, and picked Paul Clement. Sure, she chosen the previous Scalia clerk who (I believe) agrees with fellow Scalia clerks, SG Francisco and Kannon Shanmugam.
On the time, I assumed it was a shrewd transfer. Clement could be higher served to hand-craft arguments for the conservatives on the bench, notably Chief Justice Roberts, who might in any other case be inclined to rule in opposition to the CFPB. In impact, Kagan selected Clement because the equal of a counter-clerk. (I’m not positive if Kagan has adopted the sometimes-practice of Justice Scalia, and picked counter-clerks for her personal chambers).
Did Kagan’s alternative pan out? I don’t assume it did. You’ll be able to learn what I wrote in 2020, which I do know brought on some controversy on the time. Legal professionals are educated to zealously argue in favor of a consumer. However Clement has no consumer right here.
Will Clement’s appointment right here work out for Choose Ho? Properly, in contrast to with Seila Legislation, Clement is just not compelled to defend any specific judgment. He’ll give his personal opinion. And I’ve to assume that Choose Ho didn’t inquire about these views upfront. If he did, that might be extraordinarily problematic.
In the end, I believe this complete train is a waste of time. The Choose ought to dismiss the prosecution promptly. This appointment merely reaffirms the notion of how Lawfare continues to hobble the Trump Administration. Certainly, DOJ is making an attempt to de-weaponize the regulation by dismissing an indictment. But it surely can’t accomplish that.
