The Volokh Conspiracy
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Judge Ho's Decision To Appoint Paul Clement In United States v. Adams (Updated)
This decision may not pan out for the court.
Today, Judge Ho (no, not that Judge Ho) appointed Paul Clement as an amicus in United States v. Adams.
Accordingly, to assist with its decision-making via an adversarial process, the Court exercises its inherent authority to appoint Paul Clement of Clement & Murphy PLLC as amicus curiae to present arguments on the Government's Motion to Dismiss. See Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 209 (2020) ("Because the Government agrees with petitioner on the merits of the constitutional question, we appointed Paul Clement to defend the judgment below as amicus curiae. He has ably discharged his responsibilities.") . The Court expresses its gratitude to Mr. Clement for his service and will provide Mr. Clement a copy of this Order and the transcript from the February 19 conference.
From time-to-time, the federal government declines to defend a judgment in a pending Supreme Court case. In such cases, the Court will appoint an amicus to defend the judgment below. In other words, the amicus is not arguing his own personal views on the law, but is instead defending what the lower court did.
This approach makes some sense when there is an actual lower-court opinion. But this approach does not make sense in a trial court. The Court appointed Paul Clement to "present arguments on the Government's Motion to Dismiss." What kind of arguments? The order does not say. Maybe Clement will agree with the government. Maybe he won't. Who knows? In effect, the Court has appointed Paul Clement to give Paul Clement's opinion on the issue. Clement is a friend of the Court, to be sure. But unlike most amicus, he is being elevated to the status of a party. I think Article III jurisdiction demands adversity, and appointing an amicus to argue his own views does not suffice for adversity. For all we know, Clement will agree with the government, and there still will be no adversity.
In candor, I am a bit befuddled by this decision. I know Judge Sullivan appointed an amicus in the Michael Flynn case. That is certainly a precedent, but not a particularly good one.
There is another element to discuss here. It is pretty obvious the Court appointed Clement to have a well-known conservative (potentially) argue against the Trump Administration. Judge Ho took a page from the Seila Law playbook, in which Circuit Justice Kagan selected Clement. I described Kagan's choice back in 2020:
That choice fell to Justice Kagan, the Circuit Justice for the Ninth Circuit. And she made a strategic decision. Rather than selecting someone like Deepak Gupta, a steadfast defender (and former employee) of the CFPB, she looked to the right, and picked Paul Clement. Yes, she selected the former Scalia clerk who (I suspect) agrees with fellow Scalia clerks, SG Francisco and Kannon Shanmugam.
At the time, I thought it was a shrewd move. Clement would be better served to hand-craft arguments for the conservatives on the bench, particularly Chief Justice Roberts, who may otherwise be inclined to rule against the CFPB. In effect, Kagan chose Clement as the equivalent of a counter-clerk. (I am not sure if Kagan has adopted the sometimes-practice of Justice Scalia, and picked counter-clerks for her own chambers).
Did Kagan's choice pan out? I do not think it did. You can read what I wrote in 2020, which I know caused some controversy at the time. Lawyers are trained to zealously argue in favor of a client. But Clement has no client here.
Will Clement's appointment here work out for Judge Ho? Well, unlike with Seila Law, Clement is not forced to defend any particular judgment. He will give his own opinion. And I have to think that Judge Ho did not inquire about those views in advance. If he did, that would be extremely problematic.
Ultimately, I think this entire exercise is a waste of time. The Judge should dismiss the prosecution promptly. This appointment simply reaffirms the perception of how Lawfare continues to hobble the Trump Administration. Indeed, DOJ is trying to de-weaponize the law by dismissing an indictment. But it cannot do so.
Update: Maybe we can predict what Clement might say in this case. As some readers may know, Paul Clement represented Boeing before the Fifth Circuit. Boeing and the United States reached a deferred prosecution agreement, which would have effectively dismissed the prosecution. Co-blogger, Paul Cassell represented the family members of victims of Boeing crash, who objected to the deal. Clement's brief to the Fifth Circuit speaks about the importance of the Prosecutor's ability to dismiss cases:
The Constitution entrusts the Executive—and the Executive alone—with the duty to "take Care that the Laws be faithfully executed." U.S. Const. art. II, §3. Given that constitutional command, it is unsurprising that "[t]he Executive's primacy in criminal charging decisions is long settled," as "decisions to initiate charges, or to dismiss charges once brought, lie at the core of the Executive's duty to see to the faithful execution of the laws." Fokker, 818 F.3d at 741 (alterations omitted); see, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974) ("[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case[.]"). Conversely, judicial authority is "at its most limited" when reviewing a prosecutor's exercise of discretion over charging decisions, as "few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought." Fokker, 818 F.3d at 741; see Wayte v. United States, 470 U.S. 598, 607 (1985) ("[T]he decision to prosecute is particularly ill-suited to judicial review."). While several other countries have systems in which courts have a direct role in initiating or supervising criminal prosecutions, that is decidedly not the system the Framers adopted. See Blakely v. Washington, 542 U.S. 296, 313 (2004). Our Constitution leaves it to prosecutors, not courts, to decide whether and how to pursue or dismiss criminal charges. As the Second and D.C. Circuits have recognized, those principles preclude district courts from superintending the quintessentially prosecutorial decisions embodied in DPAs.
Clement also represents Attorney General Drummond in Glossip v. Oklahoma. The entire premise of that case is that the Attorney General, and not the Court, decides whether a prosecution goes forward. Those facts are not exactly analogous to the Adams context, but they are consistent with what Clement argued in the Boeing case.
Anyway, if I was looking to appoint a lawyer who has filed arguments in support of Emile Bove's position, then Paul Clement would be my pick. I do not know if Judge Ho was aware of these cases.
