Clement now represents law firms challenging Trump executive orders
Paul Clement is scheduled to approach the Supreme Court lectern on Wednesday for his 129th oral argument, extending what is already a record-setting career at the high court. Whether he is the best Supreme Court advocate of his generation is arguable; that he is the most prolific is not.
Clement defined the job this way at a recent conference sponsored by the National Review: “I always think a good working definition of a good Supreme Court advocate is somebody who’s trying to get to five for their client.”
Clement served as U.S. solicitor general in the George W. Bush administration and has spent the years since working outside government, often challenging executive-branch actions. He told the National Review he remains a supporter of a strong presidency. “I’m a big believer in the unitary executive — but that doesn’t mean that the president gets to do anything he wants,” he said.
Among the arguments Clement has won at the court: rulings that kept judges out of partisan gerrymandering disputes, told courts they do not have to defer to federal agency expertise and struck down restrictions on guns. His challenge to the Affordable Care Act under President Obama was a loss.
His Second Amendment practice led to his split with a prior firm. His current law partner, Erin Murphy, recalled the episode in a Federalist Society webinar about defending unpopular clients. “We had lots of different cases and clients, and over time, it just became something more and more people were complaining about,” Murphy said. “The firm said you can remain at the firm only if you drop your existing clients and discontinue the Second Amendment work you had done. We said, ‘No thank you’ and went and started our firm, Clement and Murphy.”
Clement and Murphy now represent large law firms challenging punitive actions by President Trump. The orders targeted firms that had hired attorneys who once investigated Trump, withdrawing security clearances and barring the firms from federal buildings. Clement argued the case at the D.C. Circuit appeals court in May.
“The executive orders run afoul of the better part of the bill of rights,” he told the panel, contending the orders violated the First Amendment rights of the firms and unlawfully retaliated against them. “Lawyers cannot zealously represent their clients while walking on eggshells for fear of reprisals,” Clement said. “Thus the executive orders strike at the heart of the rule of law and the zealous representation on which the judiciary and the adversary process depend.”
At one point in the hearing, Clement told the three-judge panel he backed a strong executive branch. “You know, look, I’m kind of a unitary executive guy myself, so I’m not going to tell you that a president does everything that the process … ” he began. “Not any more,” replied Judge Neomi Rao, a Trump appointee, prompting murmurs from the audience. “Not any more.” “No, I really I am, I really am, trust me on that,” Clement responded. The D.C. Circuit has not yet ruled.
Clement has prevailed in other disputes against the Trump administration. This year, the Supreme Court refused to allow Trump to fire Lisa Cook, a member of the Federal Reserve Board. Clement also successfully defended the federal district court in Maryland, where the Trump Justice Department sued every judge over an order on immigration detention.
Clement, 60, appeared on a shortlist for the Supreme Court during Trump’s 2020 campaign. Given his work on behalf of several Trump targets, his nomination to the court now appears out of the question. He told the National Review he never planned to pull back when he saw examples of executive-branch overreach, no matter who controlled the White House.
The case set for argument Wednesday does not concern the White House. It involves a 1988 law known as the Video Privacy Protection Act, which Congress passed to protect consumers’ privacy when they rented videos. Clement’s filings argue that plaintiff lawyers have stretched the law in recent years to cover situations far beyond a trip to the old Blockbuster video store.