The right's legal heavyweight takes on Trump

The Hill

02-04-2025

President Trump has an unlikely foe in his efforts to target Big Law firms: Paul Clement.
Clement is a conservative legal heavyweight who served as solicitor general in President George W. Bush's administration and has argued more than 100 cases before the Supreme Court. He has notched major conservative victories at the court, including expanding the Second Amendment, ending deference to federal agencies and enabling a high school football coach to pray on the field with students.
Now, Clement is taking on WilmerHale as a client as it sues the president over his executive order restricting the firm's attorneys' security clearances and access to federal buildings.
'The Order is not only a threat to WilmerHale, but inimical to our Nation's constitutional order and the rule of law,' Clement wrote in court filings.
It's an interesting position for Clement, who twice resigned from Big Law firms to keep representing conservative positions.
In 2011, Clement left King & Spalding when it withdrew from representing the House of Representatives in defending the Defense of Marriage Act. And years later, he resigned from Kirland & Ellis after it announced it would no longer handle cases implicating the Second Amendment.
'It's especially admirable of Paul Clement to be standing up for BigLaw when BigLaw didn't have the courage to stand up for him,' Ed Whelan, a noted conservative legal commentator and friend of Clement, wrote on X.
As Trump began targeting firms, questions ran abound about who would represent them and risk placing themselves in the president's crossfire.
Cooley LLP, a Silicon Valley-based firm that also frequently collaborates with the American Civil Liberties Union, is representing Jenner & Block.
Williams & Connolly, another elite law firm known for its aggressive fights against the federal government, represents Perkins Coie.
And now Clement & Murphy represents WilmerHale, providing the firm with strong conservative bonafides in its fight.
'It probably is true, I think, WilmerHale has more self-identified liberal partners than conservative partners,' Seth Waxman, who leads the firm's Supreme Court practice, said at a 2022 Federalist Society panel event.
Also on the panel? Clement.
'Big law firms are becoming increasingly woke because some of their clients are becoming increasingly woke,' Clement said.
But he later cautioned, 'I'm not I'm not begrudging anyone, I'm just trying to point out that we have a problem here, and the reason I think we have a problem here is because I think the adversarial system depends on having the best possible representation from sort of both sides of the V.'
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In Focus
The legal movement's newest influencers: Dem AGs
Court proceedings might often unfold behind closed doors, but the Democratic attorneys general challenging President Trump's expansive agenda want to bring their work to your feed.
Dem AGs are turning to new media to mount their resistance to Trump 2.0, using untraditional means to win in the court of public opinion as they fight legal battles in courtrooms across the country.
'This is an opportunity for us to ensure that the federal government is held to account when they violate the rights of our respective states and the residents of our states,' Michigan Attorney General Dana Nessel told The Gavel in an interview, citing the burst of lawsuits brought by attorneys general nationwide.
'We just thought it was more important than ever to make sure that people are understanding, like, 'What does an attorney general even do?''
So, what does an attorney general do? Start a podcast, of course.
Earlier this year, Nessel and Arizona Attorney General Kris Mayes launched a podcast together called 'Pantsuits and Lawsuits,' where they dissect key legal-political battles and explain their roles as the first line of defense against a president who also enjoys party control in both chambers of Congress, leaving liberal legislators with few tools to fight back.
Branching out on messaging has become a 'significant conversation' among Dem AGs, Nessel said, which includes elevating Democratic voices in the podcasting world, dominated by conservative household names like Candace Owens and Tucker Carlson and fratty creators like Joe Rogan and Theo Von, who lent Trump a hand come election season.
'If you're not meeting people where they are, then you're not going to get your viewpoints across,' Mayes said in an interview with The Gavel. 'We, in general, need to do a better job of creating our own content, but also not being afraid to go on conservative podcasts.
'I personally would love to go on Theo Von,' she added. 'A message to Theo Von: if you want me to come on, just let me know.'
(And, Theo, if you're reading this — shout out The Gavel, while you're at it, too.)
The shift toward new media comes after a distinctly digital presidential election.
Trump's coalition of right-wing influencers and podcast bros helped serve up his populist agenda to new, like-minded demographics, while former Vice President Harris's adaptation of popstar CharliXCX's 'brat' branding and online memes gave Democrats a fighting chance after President Biden's campaign dramatically faltered.
Democrats have long struggled to harness the enthusiasm of younger audiences, who often lean left but view the party as an unreliable ally on progressive demands. The Democratic attorneys general's online efforts come as national Democrats also seek to redefine their digital strategy, taking lessons from progressive creators online and experimenting with new content – sometimes successfully, sometimes not.
We could talk about this forever — and lucky for you, reader, we did!
Read the full story here.
So Many Emergencies
The Supreme Court's emergency docket is jam-packed with the requests from the Trump administration to lift lower judge's injunctions blocking various executive orders and policies.
Unlike merits cases, these emergency applications are handled 'on the papers,' meaning the court rules once each side gets to stake out their position in writing.
Here's a look at where each stands:
Birthright citizenship: Filed: March 13; Plaintiffs' responses due: April 4, 4 p.m. EDT
The administration is asking to narrow three nationwide injunctions (upheld by the 1st, 9th and 4th Circuits) blocking Trump's birthright citizenship executive order. The Justice Department wants the injunctions to only cover the plaintiffs and allow officials to enforce Trump's order otherwise.
Probationary employees: Filed: March 24; Plaintiffs' response due: April 3, 12 p.m. EDT
The administration is asking to lift a San Francisco-based district judge's injunction (upheld by the 9th Circuit) ordering more than 16,000 fired probationary employees at six federal agencies to be reinstated. If the request succeeds, the employees would be terminated once again.
Teacher grants: Filed: March 26; Plaintiffs' response due: Already filed on March 28
The administration wants to wipe a Boston-based district judge's temporary restraining order enabling eight Democratic-led states to draw down $65 million under federal teacher development grant programs the administration froze as part of its diversity, equity and inclusion crackdown.
Alien Enemies Act: Filed: March 28; Plaintiffs' response due: No deadline set yet
The administration wants to lift a series of orders issued by a Washington, D.C.-based district judge blocking Trump from invoking the Alien Enemies Act, a rarely used, wartime law, to swiftly deport alleged Venezuelan gang members.
Chamber of Silence
The federal judiciary Monday released the long-awaited results of a 2023 workplace survey sent to all nearly 28,000 judiciary employees. Half responded.
The survey contained a headline-grabbing statistic that 8.3 percent of respondents reported experiencing harassment, discrimination or abusive conduct.
But the judges involved in managing the survey weren't too concerned with that number, emphasizing to reporters that it is favorable compared to similar surveys conducted by the other two branches.
'We were also gratified to learn that our employees, and something that we as judiciary leaders have long believed that for our employees, wrongful conduct is not pervasive in our workplaces,' Senior U.S. District Judge Julie Robinson, an appointee of the younger Bush, told reporters.
Instead, the Federal Judiciary Workplace Conduct Working Group was more worried about another stat: Only 42 percent of respondents agreed that employees are willing or very willing to report wrongful conduct.
'We want to see a much higher number of people that feel confident in reporting and also in using the procedures,' Robinson said.
'The reluctance to report is a very strong barrier,' said Senior U.S. Circuit Judge Margaret McKeown, an appointee of former President Clinton and another member of the working group.
Petitions Pile
A convicted serial killer's petition has been relisted for the first time.
David Villarreal, who was convicted of torturing and killing five gay men and is suspected of killing others, argues his trial judge violated his Sixth Amendment right.
The judge prohibited Villarreal from discussing his ongoing testimony with his counsel while the court was in a 24-hour recess.
In 1976, the Supreme Court ruled in Geders v. United States that a judge can't bar a defendant from conferring with their counsel in the middle of their testimony during an overnight recess.
But in Villarreal's case, the judge permitted him to meet with his attorney about other subjects, so long as they did not discuss his testimony. He appealed after the Court of Criminal Appeals of Texas rejected his argument.
'Prohibiting counsel from discussing the defendant's testimony during an overnight recess is tantamount to preventing counsel from doing his or her job,' Villarreal's lawyers at the UCLA School of Law Supreme Court Clinic wrote in his petition.
The court has also relisted again six other petitions we've discussed in previous editions of The Gavel. But we want to return to one petition that has been relisted again. And again. And again.
Up for its 11 th consecutive conference is Apache's Stronghold's attempt to stop a sacred Apache religious site from being turned into a copper mine.
So what's going on? Here's how things have played out for previous petitions listed so many times:
Summary opinion: The court is able to issue its final decision in a case without hearing oral arguments, known as a 'summary opinion.' The justices did so in November, when they vacated a decision blocking Joseph Clifton Smith's execution in a case that tested the limits of the death penalty and the intellectually disabled. Smith's petition had been listed more than 20 times.
Strategic delay: Last term, a similar mystery played out as the court listed death row inmate Richard Glossip's petition more than 10 times. The court ultimately granted the case just after the deadline passed for a case to be granted in time to be considered that term. Instead, Glossip's case was put on this term's docket, and a decision in his favor was handed down late last month.
Written dissent: In a pair of cases last term challenging New York City's rent control that hit a double-digit number of listings, Thomas ultimately issued a solo dissent. It remains unclear why the court held onto the case for so long; Thomas's d issent was just two paragraphs long.
We're not sure what's going on this time, but it's surely one two watch as the plaintiffs say the plan substantially burdens their religious exercise, violating both the First Amendment and the Religious Freedom Restoration Act.
(Remember Clement? His firm is part of the legal team, which is led by the Becket Fund for Religious Liberty)
In/Out: The Order List
IN: Nothing
The Supreme Court took up no new cases at its recent weekly conference
OUT: Death row case
The court declined to take up Missouri death row inmate Lance Shockley 's petition seeking a legal pathway to claim his lawyer was ineffective.
Justices Sonia Sotomayor and Ketanji Brown Jackson, both members of the court's liberal minority, dissented. It's the latest example of how the duo dissent in death row and criminal defense cases more regularly compared to some of their colleagues.
'Unfortunately, the Court leaves the issue for another day,' Sotomayor wrote.
A jury convicted Shockley for murdering a police officer who was investigating his role in a drunken driving incident that killed his sister-in law's fiancé. Shockley's lawyer did not discover until after the verdict that the jury foreperson had authored a fictionalized autobiography describing the 'brutal and graphic revenge murder of a defendant who killed the protagonist's wife in a drunken-driving accident' and handed it out to several jurors during deliberations.
Shockley argues he had ineffective counsel because his attorney was given an opportunity to question jurors during a mistrial hearing but did not call any witnesses.
To advance his claims, Shockley filed a federal habeas petition, which challenges the legality of his detention, but it was rejected by a district judge.
Federal law provides that prisoners can only appeal such a denial if 'a circuit justice or judge' issues a certificate of appealability. When Shockley asked the 8 th U.S. Circuit Court of Appeals panel to do so, it refused in a 2-1 decision.
In some circuits, Shockley would've prevailed, since 'a' judge agreed. But the 8 th Circuit uses a stricter standard that requires a majority. That test drew criticism from the two liberal justices Monday, who called it an 'entrenched Circuit split over an important question of statutory interpretation.'
'This case exemplifies the problems with the Eighth Circuit's contrary approach,' Sotomayor wrote.
But without two other colleagues, they fell short of the four votes required to take up Shockley's claims.
On the docket
Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now:
Today
The Supreme Court will announce opinions.
The justices will also hear oral arguments over whether Medicaid recipients have the right to choose a specific provider.
U.S. District Judge Tanya Chutkan, who also oversaw Trump's now-dismissed federal election subversion criminal case, will hold a preliminary injunction hearing in Climate United Fund's lawsuit over its Environmental Protection Agency grant funding that Citibank has refused to disburse.
Another federal judge in Washington, D.C. will hold a hearing for injunctive relief in two lawsuits challenging the Trump administration and DOGE's takeover of the Inter-American Foundation.
Thursday
Hayden Haynes, chief of staff to House Speaker Mike Johnson, is set to be arraigned in D.C. Superior Court on a DUI charge.
A federal judge in Rhode Island is set to hold a preliminary injunction hearing in a lawsuit challenging the administration's freeze in funding for the Inflation Reduction Act and Bipartisan Infrastructure Act.
U.S. District Judge James Boasberg, the latest subject of Trump's ire, is set to hold a hearing over whether the Trump administration violated his temporary restraining order.
Friday
A D.C. federal judge is set to hold a preliminary injunction hearing in a lawsuit challenging the recission of a DHS memo that prohibited ICE raids in places of worship.
Monday
The Supreme Court will announce orders.
Tuesday
A federal judge in Maryland will hold two days of hearings on pending motions in the criminal case of a California man accused of attempting to assassinate Justice Brett Kavanaugh at his home.
A D.C. federal judge will hold a preliminary injunction hearing on whether to block a Trump administration rule that requires millions of noncitizens to submit biometric information and at all times carry proof they have done so.
What we're reading
The New York Times's Adam Liptak: Will Religion's Remarkable Winning Streak at the Supreme Court Continue?
Questions? Tips? Love letters, hate mail, pet pics?