Pelosi writes letter to Boehner requesting DOMA lawyer’s contract

House Minority Leader Nancy Pelosi (D-Calif.) on Monday responded to a letter from House Speaker John Boehner (R-Ohio) on the Defense of Marriage Act (DOMA) with a letter of her own requesting details about the House’s hiring of an outside legal counsel to defend the law, which bars the recognition of same-sex marriage.

In her letter, released hours after Boehner sent his letter to her, Pelosi reiterated her call for a cost estimate of the House’s intervention on DOMA.

“Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of hiring outside legal counsel,” Pelosi wrote. “Again, I am requesting that you disclose the cost of hiring outside counsel for the 12 cases where DOMA is being challenged.”

Boehner spokesman Michael Steel responded that Pelosi had not considered Boehner’s statement that funds should be redirected from the Justice Department to pay for the House’s intervention.

“Since the Department of Justice will not do its job and defend a law passed by Congress and signed by the President, the House must — but it is only fair for us to get the necessary money from the Department’s budget,” Steel said. “The Democratic Leader’s letter does not address that issue.”

Pelosi also asked Boehner to release the details of a contract reportedly signed between the House and Paul Clement, a U.S. solicitor general during the George W. Bush administration who has been tapped by Boehner to serve as outside counsel on the DOMA legal fight, according to reports. Clement is currently head of appellate practice at the King & Spalding law firm.

“According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was forwarded to the Committee on House Administration, although not to the Democratic members or staff of the Committee,” Pelosi wrote. “Mr. Clement, a former Solicitor General of the United States, is a partner in the Washington firm King & Spalding where he is in charge of the national appellate practice. I would like to know when the contract with Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee.”

As a Legal Times blog post on Monday notes, Clement’s hiring would mean that two Republican former solicitors general are playing prominent (and opposing) roles in the same-sex marriage debate: Clement’s predecessor as solicitor general, Ted Olson, is an attorney for the gay plaintiffs in California’s Proposition 8 fight. Clement served as Olson’s deputy before taking over the job in 2004.

(The Post’s Robert Barnes profiled Olson’s role in the same-sex marriage debate last June.)

Pelosi’s full letter to Boehner is below.

April 18, 2011

The Honorable John A. Boehner

Speaker of the House

H-232, The Capitol

Washington, D.C. 20515

Dear Mr. Speaker:

Thank you for your response earlier today to my letter of March 11, 2011 concerning litigation relating to the Defense of Marriage Act (DOMA). My letter had requested that you provide me with the cost to the House and to taxpayers resulting from the decision of the Republican members of the Bipartisan Legal Advisory Group (BLAG) to hire outside counsel to represent the House in support of the DOMA. You note that President Obama and Attorney General Holder have determined that DOMA is unconstitutional, a conclusion I share, and have declined to engage in further judicial proceedings in defense of the law. As you may know, presidents have acted similarly in the past on at least 50 instances since 1979.

Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of hiring outside legal counsel. Again, I am requesting that you disclose the cost of hiring outside counsel for the 12 cases where DOMA is being challenged.

Press reports indicate that the House, at your direction, will intervene today in the Windsor case, which is in a federal court in New York. Ms. Edie Windsor spent more than 40 years with her partner, Ms. Thea Spyer, and they were married in 2007. When Ms. Spyer passed away Ms. Windsor was unable to claim the federal estate marital tax benefit because of DOMA and the federal government imposed estate taxes of more than $360,000 on the money left to her. This case is a prime example of the injustice perpetuated by DOMA on millions of American families.

According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was forwarded to the Committee on House Administration, although not to the Democratic members or staff of the Committee. Mr. Clement, a former Solicitor General of the United States, is a partner in the Washington firm King & Spalding where he is in charge of the national appellate practice. I would like to know when the contract with Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee.

The House of Representatives need not enter into this lengthy and costly litigation. Contrary to the assertion in your letter, a BLAG determination against House involvement in the litigation – which was the position of Democratic Whip Hoyer and me – would not have allowed the constitutionality of the law to “have been determined by a unilateral action of the President.” As you know, only the courts can determine the constitutionality of a statute passed by the Congress.

Thank you again, and I look forward to working together with you on behalf of our country.

Best regards,

NANCY PELOSI

Democratic Leader

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