Today’s long-anticipated Hobby Lobby decision at the Supreme Court marks a win for the bench’s conservative members, but the victory is likely sweetest for Republican super-lawyer Paul Clement.
Clement—solicitor general during the George W. Bush administration, now a partner at Bancroft—has argued many of the highest-profile conservative causes at the high court in recent years. But he has frequently come up short, as we first detailed in December 2012. Last term, he advocated for the Defense of Marriage Act, losing in a historic ruling that gave same-sex couples in states that allow gay marriage equal access to federal benefits. The year prior, he challenged the Affordable Care Act before the justices, who ultimately upheld the law in a 5-4 victory for the Obama administration.
This morning’s ruling was also split 5-4, but this time in Clement’s favor. In the case, Burwell v. Hobby Lobby, Clement represented the craft-store chain, as well as Conestoga Wood Specialties. Both companies asserted that for religious reasons, they should not have to comply with a requirement under the Affordable Care Act that they cover contraception for women employees. Justice Samuel Alito wrote the opinion siding with the business owners.
In her dissent, Justice Ruth Bader Ginsburg called the decision one of “startling breadth.” Echoing the concerns of women’s rights advocates nationwide, she wrote: “The court, I fear, has ventured into a minefield.”
As for Clement, he’s finally just ventured into the winner’s circle.
The first Monday in June began a new era for DC’s power peddlers. Over the weekend, the legendary law and lobbying firm Patton Boggs had finalized its merger with the Cleveland outfit Squire Sanders to create Squire Patton Boggs.
Both firms posted glowing marriage announcements on their websites—Squire Sanders celebrating its acquisition of not only a bigger base in the capital but also the town’s most storied lobbyist, Thomas Hale Boggs Jr. For its part, Patton Boggs gained new worldwide reach—the combined firm has offices in 21 countries—but everyone in the industry knew that Patton Boggs, in a tailspin for the past year and mired in fallout from a long-running, controversial case against Chevron, had been thrown a lifeline.
Far more interesting is what Akin Gump, for years the District’s second-place lobby shop, gets from the Squire Patton Boggs deal.
Akin had its own big announcements to make. The previous Thursday, it had made public a “significant expansion” of its health-care-policy team, with a group of seven led by veteran lobbyist John Jonas. That Monday brought news of four additions, led by telecommunications-policy partner Jennifer Richter. By week’s end, it had snagged five more health-care experts. All 16 recruits came from Patton Boggs. Anyone who knows anyone in the law/lobby trade could read between the lines: Akin Gump is poised to be the new king of K Street.
“Akin Gump is growing and taking work from Patton Boggs,” says a lobbyist from another high-ranking firm. “They’re positioned to be number one.”
Akin has run second to Patton Boggs in annual lobbying revenue since 2007, and Patton Boggs maintained its lead last year, posting $39.8 million to Akin’s $33.7 million. Compared with 2012, however, the totals represent a 13-percent drop for Patton and an 8-percent increase for Akin.
As Patton Boggs faltered, it faced frequent criticism that it relied too heavily on Boggs himself and had failed to institute a succession plan. (At the combined firm, Boggs is chairman emeritus.) Though Akin had its own struggles during the 2008 economic downturn, it may have benefited from its need to shake itself up periodically. Cofounder Bob Strauss, who died earlier this year, repeatedly left for political appointments, forcing partners to think beyond him. Today the firm is led by a relatively young female chair, Kim Koopersmith.
Not that Akin should get too comfortable. History shows that a firm’s time at the top is often fleeting. In 1998, a revered lobby shop called Verner, Liipfert was the highest-grossing in Washington. Patton came in first in 2003—one year after Verner, Liipfert was swallowed by a larger firm. Sound familiar?
The folks at Akin are wise to be cautious. Though he acknowledges that his firm may “very well be” number one, public-law-and-policy head Donald Pongrace says: “I haven’t done any of the math to figure it out. It doesn’t drive us because it doesn’t drive our clients.”
This article appears in the July 2014 of Washingtonian.
It appears DC residents will get to vote for an attorney general this year after all, the District’s highest court ruled Wednesday in issuing an opinion saying the DC Council acted illegally in delaying the first such election until 2018.
“It follows from our holding that an election must be held in 2014 unless it would not be practically possible,” writes a three-judge panel from the DC Court of Appeals. The ruling gives new life to attorney Paul Zukerberg’s quest to become the city’s first elected attorney general. Zukerberg, a criminal defense lawyer, sued the city last year after the Council passed legislation delaying the first attorney general contest by four years despite a 2010 amendment to the city’s charter that called for making the District’s top lawyer an elected position.
Zukerberg’s suit to put attorney general back on the ballot in time for the April 1 primary was dismissed in DC Superior Court in February, apparently squashing his political ambitions. But Zuckerberg’s appeal appears to have swayed the District’s top judges, who wrote that while the charter amendement reads that DC would begin electing attorneys general “after January 2014,” the Council was wrong see that as an opening to repeated delays.
The big wrinkle in today’s ruling is that the DC Board of Elections needs to determine if it’s feasible for an attorney general race to be added to the November ballot. In their ruling, the judges hint that with the primary elections already passed, the Board of Elections could use special-election rules to set a non-partisan race.
Reached by phone, Zukerberg says he is “absolutely” still a candidate. He was also the only candidate when the Council shelved the election, a decision Council members who supported the delay said was made because of a paucity of candidates and confusion over which city lawyers an elected attorney general would supervise. Those questions remain unanswered, but Zukerberg says he’s bracing for a contest.
“I anticipate other candidates entering the race,” he tells Washingtonian. “We’ll have a real election just like we said we wanted to.”
Ted Gest, a spokesman for current DC Attorney General Irv Nathan (who was appointed to his post by Mayor Vince Gray), says his office is still analyzing the ruling.
UPDATE, 3:52 PM: Well, that didn't take long. In a statement, Nathan says his office plans to appeal today's order by asking the full Court of Appeals to review the decision:
We are studying the Court’s Order and awaiting its opinion. We continue to believe that the Council of the District of Columbia had the authority to interpret the 2010 Charter Amendment to authorize a statute scheduling the Attorney General election to be in 2018, and we will be drafting a petition to the full en banc court of the D.C. Court of Appeals on that key point. We will also be working with the Board of Elections and the Council to develop a full explanation of the practical and legal issues associated with rushing to hold the Attorney General election in 2014, which we will present in any further Superior Court proceedings following the Court of Appeals’ final decision.
And now for some less-than-friendly uncoupling. Power lobbyist Tony Podesta has filed a scathing request for divorce in DC Superior Court yesterday from his estranged wife, and fellow lobbyist, Heather Podesta.
The same day, Heather filed her countersuit.
Separated for more than 18 months after a decade of marriage, the couple, who have no children, protested when news of their split hit that the divorce would be amicable.
But in his filing in Superior Court, Tony, founder and chairman of Podesta Group, scores his wife not only for trading on his powerful name but for using it to boost the fortunes of her lobbying firm, Heather Podesta + Partners. “It takes a Podesta to take out a Podesta,” his filing quotes Heather as saying.
Tony also paints a portrait of Heather as a very junior partner in what became one of the highest-profile power matings in DC. “Ms. Podesta was 33 years old when the parties married,” his complaint reads, sniffily pointing out that she “was working for a trade association when she met Mr. Podesta” after stints at various law firms. “Ms. Podesta was earning approximately $55,000 per year at the time of the parties’ marriage.” His filing also notes that Heather, whom it refers to pointedly as Heather Miller, didn’t take the last name of either of her first two husbands before their 2003 marriage.
In Washington, a romance between unequally empowered parties is nothing out of the ordinary. Nor is it odd for the more modestly remunerated spouse to point out that it takes two to build a credible brand, as Heather points out in her more reserved complaint: “As a married couple who both lobbied,” the document says, “they strategically cultivated their public image, and worked to build their ‘Heather and Tony Podesta’ brand for the success of their shared enterprise.”
Tony remembers the caring—he says in his complaint that the relationship can be healed—but not the sharing. During their marriage, his filing says, her career “has risen meteorically . . . with Mr. Podesta’s assistance and connections. Mr. Podesta introduced Ms. Podesta to important political, social, and business contacts. [He] taught [her] about the lobbying industry, sharing with her the knowledge he had gathered through decades of experience.”
His larger point seems to be that everything she has, including anything she’s gained from her own business, streams from him. The filing indicates his side will argue that Tony should keep the significant art collection he brought to the marriage—what he calls “his separate property”; otherwise it requests an equal split of marital property.
Her filing, meanwhile, asks outright for their mansion on Belmont Road, Northwest, saying they developed the house together with the goal of creating “a uniquely beautiful architectural space for the dual purposes of having a wonderful home in which to live and promoting their shared interests, both professional and personal.”
But the tactic shows that the coming fight won’t be pretty: the complaint accuses Heather of seeking to “embarrass and harass” Tony “in an effort to gain economic leverage.”
At least now it’s a fair fight.
Are you a lawyer who wants to run Washington? The place to start might be Manhattan.
The US Attorney’s Office for the Southern District of New York has launched the careers of Cabinet secretaries, federal judges, senators, Congress members, even Supreme Court justices. Robert Khuzami, director of the Enforcement Division at the SEC until this year, is the latest example.
Khuzami spent 12 years at the SDNY, rising to chief of its securities-and-commodities-fraud task force. He switched teams to Deutsche Bank, then returned to policing Wall Street as the SEC’s top cop in 2009. He recently joined the DC office of Kirkland & Ellis, where he reportedly makes upward of $5 million a year.
As Khuzami explains, SDNY alums’ success is self-perpetuating: “The office has such a tradition of excellence, and that helps continue to attract the next generation of lawyers.”
Plus, given the SDNY’s location, the lawyers who land there handle cases that often garner national attention—high-profile Wall Street investigations, Mob cases, international terrorism.
Finally, the network of ex-prosecutors helps one another find opportunities. Among the alumni who served in the George W. Bush administration were homeland-security advisers Ken Wainstein and Frances Townsend and Attorney General Michael Mukasey. And Khuzami was in good company representing the SDNY in the current administration:
James Comey. Just installed as FBI director, Comey was US Attorney for the Southern District from 2002 to 2003. He also was deputy attorney general under George W. Bush.
Mary Jo White. The chair of the Securities and Exchange Commission preceded Comey as US Attorney for the SDNY, serving from 1993 to 2002. She was also an assistant US Attorney in the office.
George Canellos and Andrew Ceresney. After Khuzami stepped down, Canellos and Ceresney, both former assistant US Attorneys, took over as codirectors of the SEC’s Division of Enforcement.
Robert Litt. An assistant US Attorney early in his career, Litt has been general counsel to the Office of the Director of National Intelligence since 2009. He’s currently dealing with the controversy surrounding surveillance programs revealed by Edward Snowden.
Michael Horowitz. A prosecutor in the ’90s, he’s now inspector general of the Justice Department.
Jeh Johnson. Until the end of last year, Johnson, a former assistant US Attorney, was general counsel at the Department of Defense. He’s now a partner at Paul, Weiss.
This article appears in the October 2013 issue of The Washingtonian.
MacBride has not made any statements about where he will land next. Prior to this gig, MacBride was an assistant US attorney in the District of Columbia. Before that, he served as chief counsel to the Senate Judiciary Subcommittee on Crime and Drugs under then-Senator Joe Biden. "He has distinguished himself as an exceptional leader, a committed public servant, and a brilliant attorney—handling complicated cases with extraordinary skill," Attorney General Eric Holder said in a Justice Department statement. But replacing MacBride might be a bit complicated. As the Washington Post reports, the order of succession in the Eastern District of Virginia is a bit mucked up right now:
Rest assured that Joe Biden & Chris Dodd will provide MPAA Contract Prosecutor Neil "Deal" MacBride with a nice upgrade. Politics maybe?— Kim Dotcom (@KimDotcom) August 23, 2013
Typically, a departing U.S. attorney is replaced by a first assistant until the president appoints a permanent successor. But MacBride’s first assistant, Dana J. Boente, was appointed in December to serve as the interim U.S. attorney for the Eastern District of Louisiana after the longtime U.S. attorney there resigned amid revelations that his two top deputies were posting online comments about subjects of the office’s investigations. It is unclear whether Boente will come back to the Eastern District of Virginia or whether the acting first assistant, Kathleen Kahoe, will take over.In quitting, MacBride told the Post that he is planning on “taking a big chunk of time off to be with my family.” But before he resigns, he might be spending a bit more time with the McDonnell family. Earlier this week attorneys for the governor and his wife urged federal prosecutors not to file charges in the ongoing gifts scandal.
Supreme Court clerks are the ultimate status symbols for law firms that do appellate work. But luring one of the 39 lawyers who have spent a year behind the scenes at the high court isn’t cheap. And now that the court’s term is over, the battle is on for the outgoing clerks.
The signing bonus for clerks at major firms is $280,000. Most start at the third-year-associate level or higher, bringing their base salaries close to $200,000. Not including the vast resources firms dedicate to training them, that means each is a nearly half-million-dollar gamble—and not a very safe one. Clerks are intellectuals who often have higher-minded goals than billing thousands of hours at a firm. Many have their sights set on academia or government service, but Ivy League educations come with debt that only a signing bonus can instantly alleviate. So how can a law firm ensure it’s betting on a clerk who will stick around? It can’t.
Already, some recently hired clerks have left their firms. Elbert Lin, who clerked for Clarence Thomas during the court’s 2010-11 term, joined Wiley Rein. He’d previously been an associate there, so in theory he was among the safer bets. Alas, Lin departed earlier this year to become West Virginia’s solicitor general. “You never know about those things,” says the firm’s chairman, Richard Wiley. “You have to take your chances.”
Lin says he was “a little nervous” about leaving because he’d made a commitment. “You want to feel like you’re a person of integrity,” he says. But he couldn’t pass up the opportunity to “take on a significant leadership role” in West Virginia.
Keith Bradley, who clerked for Ruth Bader Ginsburg in 2010-11, worked at WilmerHale for less than a year before leaving for the Consumer Financial Protection Bureau. In an e-mailed statement, WilmerHale co-managing partner Robert Novick said the firm “supports and applauds” its attorneys who choose to serve in government. Still, the premature departures must sting, especially because Lin and Bradley didn’t even get the chance to handle actual Supreme Court matters for their firms, as former clerks are barred from practicing at the high court for two years.
Though some law-firm leaders grumble about the expense and risk of hiring clerks, others insist they’re a wise investment. Neal Katyal, who co-heads the Supreme Court practice at Hogan Lovells, says clerks do “extraordinary” work and clients love them. This might be easy for him to say, as the three he hired last year all remain at Hogan.
This article appears in the August 2013 issue of The Washingtonian.
Two people were conspicuously absent from the crowd at the Supreme Court this morning: head lawyers in the Prop 8 and DOMA cases, Ted Olson and Paul Clement.
Olson, a GOP stalwart, became an unlikely leading advocate for same-sex marriage when he took the case with co-counsel David Boies to get California’s same-sex marriage ban thrown out. He waited at the Supreme Court both Monday and Tuesday this week for the justices to decide the Prop 8 case. But today, when they finally handed down their ruling, he wasn’t there.
Clement defended the constitutionality of the Defense of Marriage Act in the high court’s other big same-sex marriage case. He was also missing from the court today—maybe for the best, since the court overturned the law.
So where were these two power lawyers? They’re in Philadelphia, where they’re facing off with each other at the US Third Circuit Court of Appeals in a case about sports betting.
Talk about bad timing.
In a 5-4 decision, the US Supreme Court this morning threw out the Defense of Marriage Act. But what does that mean, practically speaking, for gay and lesbian couples? In what ways will today’s decision impact their daily lives?
For couples who got married in, and continue to reside in, states that recognize same-sex marriage, today’s decision puts them on equal footing with opposite-sex couples when it comes to rights such as social security death benefits, the ability to file joint income taxes, and pension benefits, says Todd Solomon, a partner at McDermott Will & Emery who specializes in employment law and domestic partnerships.
A spouse who married and resides in a state recognizing same-sex marriage is now entitled to pension payments after the death of his or her husband or wife. Similarly, same-sex spouses are now the automatic beneficiaries of their spouses’ 401(k) plans.
Solomon expects employers in states where same-sex marriage is legal to now be required to cover same-sex spouses if they offer health coverage for opposite-sex spouses. And previously, even if an employer offered health-care coverage for gay and lesbian spouses, employees who took those benefits for their husbands and wives had to pay hundreds or thousands of dollars in federal taxes on them. This is no longer the case.
But the DOMA ruling does not change the fact that it remains up to individual states to legalize same-sex marriage. And things get murkier when it comes to employee benefits for gay and lesbian couples living in states that don’t recognize their marriages.