After the law firm King & Spalding decided to withdraw from representing House Republicans’ defense of the Defense of Marriage Act, lead attorney and former Solicitor General Paul Clement resigned from the firm in protest – and quickly vowed to continue the defense of the law with the boutique firm Bancroft PLLC.

The move came in a shocking turn of events this morning, which started with the announcement from King & Spalding that it would seek to withdraw as counsel in charge of defending the law, which denies federal benefits to gay married couples.  The firm’s chairman, Robert Hays Jr., said the decision was due to the firm’s “inadequate” vetting of its involvement in the litigation, according to the National Law Journal‘s BLT blog. Gay rights groups have recently criticized the firm for taking up the defense of the law after the Obama administration announced earlier this year that it would no long defend the statute against challenges in federal court.

Clement protested by resigning from the firm, which he joined back in 2008 after leaving the solicitor general’s office. In his letter of resignation, posted by the blog How Appealing, Clement said he decided to leave the firm immediately “not because of strongly held views about this statute.”

“Instead, I resign out of the firmly-held belief that a representation should not be abandoned because the client’s position is extremely unpopular in certain quarters,” Clement wrote. “Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high.”

Soon after, Bankroft released a statement announcing Clement as the firm’s newest partner. The announcement, which touts Clement’s background as a veteran Supreme Court advocate, mentions neither his work at King & Spalding nor his representation in the DOMA case.

Clement

After hiring former U.S. Solicitor General Paul Clement to defend the constitutionality of the Defense of Marriage Act, House Republicans officially entered the ongoing legal battle yesterday with a motion to intervene in a New York-based challenge to the law.

As you may recall, in February Attorney General Eric Holder announced that the Obama administration would no longer defend the law in federal court, spurring House Speaker John Boehner to announce that the House would defend the law. Since no Democratic members of the House have joined the effort, it is more accurate to say House Republicans are defending the law, points out SCOTUSblog’s Lyle Denniston. The Bipartisan Legal Advisory Group convened by Boehner voted to allow the House to move forward with the law’s legal defense.

Boehner

In addition to yesterday’s legal filing, Boehner also sent a letter to House Minority Leader Nancy Pelosi informing her of his intent to seek reimbursement from the Department of Justice for the costs of defending the law.

“Obviously, DOJ’s decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA,” the letter states.  “It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not DOJ, defending DOMA.”

Boehner said he has “directed House Counsel and House Administration Committee to assure that sufficient resources and associated expertise, including outside counsel, are available for appropriately defending the federal statute that the Attorney General refuses to defend.”

Even before she was nominated to the U.S. Supreme Court, then-Solicitor General Elena Kagan was largely shielded from discussions about the health care law and how to defend it, according to the National Law Journal’s Tony Mauro.

Based on internal emails obtained by conservative news site CNSNews.com through a Freedom of Information Act request, the glimpse into the inner workings of Kagan’s solicitor general’s office gives the strongest indication yet that Kagan plans to remain on the bench when the constitutional challenge to the health care law reaches the Supreme Court.

According to the emails, during Kagan’s tenure, now Acting Solicitor General Neal Katyal was the point person in discussions about the health care law, which is now being challenged as violative of the Commerce Clause.

According to the documents, on March 21, 2010 – about two weeks before Justice John Paul Stevens announced his retirement, and nearly two months before Kagan was nominated to fill his seat – Associate Attorney General Thomas Perrelli sent an email inviting Justice Department lawyers to a meeting to discuss defense of the health care law.

Katyal forwarded the email to Kagan, adding: “I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

Kagan’s reply: “What’s your phone number?”

From that point on, Mauro reports, Katyal was the lead person from the SG’s office on the issue of the health care law and its defense.

In May 2010, after Kagan’s nomination, Tracy Schmaler, a Justice Department spokeswoman emailed Katyal asking about  Kagan’s involvement on the health care issue.

“No, she has never been involved in any of it,” Katyal replied. “I’ve run it for the office, and have never discussed the issues with her one bit.”

Katyal forwarded that note to Kagan, who replied to all, “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.”

Just days after Attorney General Eric Holder sent a letter to Congress informing lawmakers that the Justice Department will no longer defend the Defense of Marriage Act – which denies federal benefits to same-sex married couples – House Speaker John Boehner announced that the House will send its own lawyers to defend the law in federal court.

The Ohio Republican will convene a House panel called the Bipartisan Legal Advisory Group that will have the power to order the House general counsel’s office to bring legal action on behalf of the House.

In announcing the move, Boehner chided President Obama for his decision to stop defending the law.

“It is regrettable that the Obama Administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy” Boehner said in a statement Friday. “The constitutionality of this law should be determined by the courts — not by the president unilaterally — and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.”

President Barack Obama yesterday named Donald Verrilli, deputy White House counsel, as his pick to be the next solicitor general. That post has been filled on an interim basis by Justice Department attorney Neal Katyal since former Solicitor General Elena Kagan was nominated to the Supreme Court last year.

Though buzz about Verrilli possibly being primed for the post started almost as soon as Kagan was tapped for the high court back in May, now some Washington legal insiders are speculating about why Katyal wasn’t Obama’s choice.

Politico’s Ben Smith talked to “a lawyer who follows this stuff,” who suggested that Katyal fell victim to the so-called “Guantanamo 7″ campaign:

Neal is a well-respected lawyer; the only “mark” against him is that he represented Guantanamo detainees — in fact, he in large part made his name when he won a case at the Supreme Court, Hamdan v. Rumsfeld, representing detainees…Clearly the White House didn’t want a confirmation battle.

It’s crazy that you can be hurt for representing detainees even when the Supreme Court determines that the position you were arguing for was correct.

Main Justice’s Fahima Haque notes that those backing Katyal for the solicitor general post included Attorney General Eric Holder. But Haque also pointed out that the Hamdan case made Katyal “a darling of left-leaning progressives,” and may have given White House vetters cold feet.

Verrilli, who Obama called an “accomplished individual,” previously served as associate deputy attorney general at the Justice Department, where he focused on national security.

Prior to his time at the Justice Department, Verrilli spent more than 20 years in the Washington office of Jenner & Block, where he co-chaired the firm’s Supreme Court practice group, arguing a dozen cases before the Court and participating in more than 100 Supreme Court cases.

The Justice Department will appeal a federal judge ruling striking down a key component of the federal health care overhaul, a step that brings the law one step closer to landing before the U.S. Supreme Court.

Earlier this week, a Virginia federal court held that the federal government lacked authority to require individuals to carry health insurance. The gist of the technical constitutional analysis was that the health care mandate was not an”activity” that the federal government had the power to regulate under the Commerce Clause. Two other federal courts – one in western Virginia and another in Michigan – ruled in the government’s favor against challenges to the law.

But the victory in Virginia may spell good news for challengers seeking to strike the law down, one expert told The Wall Street Journal. Former Solicitor General Gregory Garre told the Journal that challengers are more likely to find support in the appellate court that will hear the government’s appeal – the 4^th Circuit.

“If you had to handicap it, the 4th and the 11th Circuits would be the most friendly to the challengers,” said Garre.

The 11^th Circuit may also get its chance. Arguments in a challenge filed in a Florida Court are set for Thursday.

Noted Harvard professor and presidential advisor Laurence Tribe is leaving his position at the Justice Department in December to return to Massachusetts. But Tribe, who made headlines last month after a 2009 letter he wrote to President Obama criticizing Sonia Sotomayor as a potential Supreme Court nominee was leaked, said his decision to leave was medical, not political.

Tribe told The New York Times that he is leaving to be closer to Massachusetts General Hospital where he is receiving treatment for a benign brain tumor. He was diagnosed with the tumor in 2008, and has recently been experiencing an increase in symptoms such as facial seizures related to the tumor, he told the Times.

He revealed his medical condition “to avoid anyone speculating” that his departure was related to the leaked letter, in which he advised Obama to select Elena Kagan to replace retiring Justice David Souter instead of Sotomayor. In the letter, Tribe called Sotomayor a “bully” and added that she was “not nearly as smart as she thinks she is.”

Tribe said his nine-month tenure as the Justice Department’s senior counselor for access to justice has “been extremely productive.”

“It’s been as difficult as I imagined it would be to get a lot done in an environment with limited funding,” on the whole, Tribe said, “given that it’s been only nine months I feel very good about what we’ve accomplished.”

The U.S. Supreme Court added just one case to its docket yesterday: Ashcroft v. al-Kidd, an appeal by former Attorney General John Ashcroft, will determine whether Ashcroft is immune from a civil suit by a U.S. citizen who claims he was illegally detained as a terrorist.

As is often the case when the Court grants only one cert. petition, more headlines were made over what the Court did not do yesterday.

For example, the Court declined to take up Pitre v. Cain, the appeal of a prisoner who claimed he was punished with hard labor in 100-degree heat for refusing to take his HIV medication. A district court rejected the prisoner’s Eighth Amendment claim, reasoning that he had brought the matter on himself for not taking the drugs.

But Justice Sonia Sotomayor, in a written dissent, opposed the denial of cert., explaining why she believes the 5^th Circuit’s ruling affirming the dismissal of the prisoner’s complaint was wrong.

“The Fifth Circuit’s error in requiring Pitre to produce ‘evidence’ in support of his allegations before a responsive pleading was filed, in and of itself, is sufficient reason to reverse the judgment below,” Sotomayor wrote, citing Bell Atlantic Corp. v. Twombly.

“More fundamentally, however, in focusing on Pitre’s own contribution to his health problems, the courts appear to have misunderstood the nature of Pitre’s Eighth Amendment claim,” Sotomayor wrote. “His pro se complaint and attachments…allege not that respondents denied him medical care but that they punished him for refusing to take medication, or attempted to coerce him to take medication, by subjecting him to hard labor that they knew exceeded his medical limitations.”

She said the prisoner’s complaint was “more than sufficient to state a claim of deliberate indifference” under the Eighth Amendment’s cruel and unusual punishment prohibition.

The Court also, without comment, took a pass on Simmons v. Galvin, a challenge brought by a Massachusetts prisoner claiming the commonwealth’s law prohibiting prisoners from voting violated the Voting Rights Act because a disproportionate number of inmates are black or Hispanic.

The Court also declined to take up a request by the Reporters Committee for Freedom of the Press to unseal filings in the case In Re Grand Jury Proceedings. That case involves an investigation of a doctor accused of unlawfully prescribing pain medication.

A petition by a Texas death row inmate was also rejected by the Court yesterday. The inmate’s attorney argued in Hall v. Thaler that the man should not be executed because he is mentally impaired.

A special prosecutor announced yesterday that although Former Attorney General Alberto Gonzales made “inaccurate and misleading” statements regarding the firing of nine U.S. attorneys during his tenure, he will not face criminal charges.

Nora Dannehy, the special prosecutor charged with the investigation into the alleged politically-motivated firings of the federal prosecutors, ended her probe by recommending that Gonzales and his former chief of staff Kyle Sampson not by charged criminally.

“Based on a consideration of all the evidence and the legal standards, Ms. Dannehy concluded that there was insufficient evidence to establish that persons knowingly made material false statements to [the Office of the Inspector General, the Office of Professional Responsibility] or Congress or corruptly endeavored to obstruct justice,” according to a letter sent by the Justice Department to Congress yesterday [care of the BLT Blog].

That is not to say that all was fine at Main Justice during that time, the letter stated. The Department pointed out that Dannehy was only tasked to find out whether there was criminal wrongdoing, not just ethical violations.

“The Attorney General remains deeply dismayed by the OIG/OPR findings related to politicization of the Department’s actions, and has taken steps to ensure those mistakes will not be repeated,” the letter states.

CNN is reporting that Obama administration sources have confirmed that the Justice Department will fill a lawsuit today over Arizona’s controversial immigration law.

The suit will allege that the law is preempted by federal immigration law.

The Washington Post reports that some legal experts believe that the argument of preemption – a doctrine that has been well-established and upheld by the Supreme Court – should very well persuade the federal district court judge that the state law, which allows police to question anyone if they have a “reasonable suspicion” that the person is an illegal immigrant, is a violation of the Constitution’s supremacy clause. The law is scheduled to go into effect later this month.

Secretary of State Hillary Rodham Clinton first indicated last month that a lawsuit would be forthcoming, prompting Gov. Jan Brewer, who signed the measure into law in April, to chide federal officials for telling the news media about its plans to sue before telling Arizona state officials.