Clement Bucks Trump in Defending Fed’s Cook at Supreme Court

President Donald Trump’s pressure campaign against the Federal Reserve is facing resistance from a lawyer who’s proven integral to the conservative legal movement’s successes at the Supreme Court.

Paul Clement, who served as George W. Bush’s solicitor general, will on Wednesday appear before the justices to argue for constraining the president’s authority to fire members of the Fed’s Board of Governors.

The case is one of several matters this term that goes to the heart of Trump’s power over the executive branch and, by extension, the US economy.

Clement’s appearance is notable. The lawyer is likened to the LeBron James of the legal profession because of his mastery of the law and command in framing arguments. And his conservative bona fides should only help in his defense of Lisa Cook, whom Trump sought to fire over allegations of mortgage fraud, said Xiao Wang, the director of the University of Virginia’s Supreme Court Litigation Clinic.

“He can speak the language of saying, ‘look, I’m not here because people thought I voted for Joe Biden or Kamala Harris,’” Wang said. He also pointed to Clement’s reputation for taking on “matters that aren’t for a partisan cause, per se, but for the rule of law and having a commitment to strong institutions and separation of powers.”

Clement didn’t respond to a request for comment, but he’s talked openly in the past about what he sees as his role as an appellate lawyer.

“Look, I’m a Republican,” Clement said in a 2012 interview with Harvard Law School’s alumni magazine. “But it certainly doesn’t define the kinds of cases I take on. You read about one big case and you think, That must be the kind of lawyer he is. That’s not what it’s about. The specialty an appellate lawyer provides is pitching legal cases to appellate judges.”

Independence

Clement’s appeared before the Supreme Court for decades, racking up over 100 arguments, including wins in cases expanding gun rights and curbing regulatory authority.

His work for gun-industry clients and in defense of a law banning same-sex marriage caused him to leave two major law firms. His exit from Kirkland & Ellis came in 2022, which he said stemmed from a conviction that lawyers can’t abandon clients because their positions are unpopular. He’s also derided the event as a symbol of Big Law’s sharp turn to the left.

But in the past year, Clement made news for his involvement in fights with the Trump administration. He’s represented judges and Big Law firms targeted by Trump, and he recently joined Harvard’s legal team in its fight against the president’s attempt to bar its foreign students from entering the US.

Now leading his own firm, Clement joined Cook’s legal team, led by white-collar defense lawyer Abbe Lowell, shortly after Trump in August moved to fire her.

The justices are set to consider whether Trump’s accusations of mortgage fraud against Cook meet the legal standard that says Fed members can only be fired “for cause,” as well as whether judges have the authority to review Trump’s terminations.

Cook, who says the charges are baseless, won a preliminary injunction in September allowing her to stay in her job amid the litigation.

Clement has framed the case in sweeping terms, saying in a brief that the “president’s boundless interpretation of ‘for cause’ would destroy” the Fed’s independence while undercutting congressional intent to keep monetary policy free from politics.

Unitary Executive

While such removal limits clash with the unitary executive theory favored by some conservatives, Clement has a history of pushing for such constraints in line with the separation of powers.

In 2020, the justices invited him to argue against Trump’s ability to fire at will the head of the Consumer Financial Protection Bureau, after the administration declined to defend the agency’s structure.

In perhaps a preview of his argument on Wednesday, Clement invoked the Fed, saying Congress didn’t want a president to “juice up interest rates right before a presidential election.”

“Congress has the power to say there are certain things where we want the president to have a role,” he said during arguments in 2020. “But we also want it somewhat insulated from politics.”

Clement served from 2005 to 2008 as solicitor general, where he sought to argue a case touching every aspect of the government’s business, said John Elwood, who worked with Clement at the Justice Department.

“As a consequence he has a very broad understanding of the federal government,” said Elwood, now an Arnold & Porter partner.

‘Quasi-Private Entity’

The court’s rhetoric to date regarding the Fed suggests Clement may be better positioned than a lawyer who last month struggled before the conservative justices while arguing against Trump’s firings of other agency officials.

The court in an unsigned decision on its emergency docket last May labeled the Fed a “uniquely structured, quasi-private entity,” and Justice Brett Kavanaugh in December’s oral arguments expressed an interest in keeping removal protections intact for the central bank.

“It certainly is a suggestion that the court might view the Federal Reserve differently,” said Jacob Huebert, a lawyer at the conservative New Civil Liberties Alliance. “But I don’t think it’s the last word.”

NCLA submitted a friend-of-the-court brief arguing that the logic the court used in eliminating removal protections at the CFBP in 2020 must also cover the Fed.

Solicitor General John Sauer, a former personal attorney for Trump, will argue opposite Clement. The arguments will happen as Trump has escalated his feud with Fed Chair Jerome Powell, who revealed the Justice Department served him with subpoenas over his congressional testimony about ongoing renovations at its headquarters.

This will be Clement’s fifth argument in front of the justices in four months. The others were on behalf of Republican and business interests, one of which already yielded a win for a GOP congressman. On Jan. 16, the court also agreed to hear his client Monsanto’s appeal in a legal battle over whether its Roundup weedkiller causes cancer.