February 28, 2017

John Adams: From Boston to Guantanamo to DOMA

President of the Senate John Adams

President of the Senate John Adams (Photo credit: Wikipedia)

Michelle Mumford looks at the Defense of Marriage Act (“DOMA”) and its Defense in the context of the Honorable Monroe G. McKay, Senior Judge on the United States Tenth Circuit Court of Appeals, address to a group of young lawyers at the Utah State Bar’s annual Law Day luncheon on the theme of “The Legacy of John Adams, from Boston to Guantanamo”. Judge McKay recited a number of instances throughout history where lawyers have taken on noble yet unpopular causes.  He reminded lawyers that there will always be opportunities to do the right thing.  I found Judge McKay’s remarks especially poignant in light of the recent failure of the Atlanta law firm of King & Spalding to honor its commitment to defend the Defense of Marriage Act (DOMA).


From Boston to Guantanamo to DOMA

John Adams built an honorable reputation over time as a fair and zealous advocate.  He cemented his reputation when he agreed to represent the British soldiers on trial for the Boston Massacre.  The basic facts were as follows: On the evening of March 5, 1770, a crowd of protesters gathered near the Customs House on King Street in Boston to confront British soldiers. The situation escalated. The soldiers, who were under the command of Captain Thomas Preston, fired on the crowd. Five colonists died. Captain Preston and eight of his men were arrested and indicted for murder.

Author David McCullough wrote extensively on this episode in his biography of John Adams. He records that Adams worried that he would be “incurring a clamor and popular suspicions and prejudices” against him. (McCullough, 66) “[I]t was rumored that he had been bribed to take the case. In reality, a retainer of eighteen guineas was the only payment he would receive.” (Ibid.)

Adams’s defense was that the soldiers were acting in self-defense in the face of an unruly mob. In closing arguments, Adams first coined the famous phrase: “Facts are stubborn things. And whatever may be our wishes, our inclinations or the dictates of our passion, they cannot alter the state of facts and evidence.” (McCullough, 68.) The jury acquitted the British Captain and six of his soldiers; two were convicted of lesser charges and, instead of the death penalty, punished by branding of the thumb.

Adams recorded in his diary: “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.”

Adams’ representation of the British soldiers was not without consequence. McCullough observes: “There were angry reactions to the decision. Adams was taken to task in the Gazette and claimed later to have suffered the loss of more than half his practice. But there were no riots, and Samuel Adams appears never to have objected to the part he played.” (McCullough, 68.)

Judge McKay pointed out how American history reflects other instances of courageous lawyers taking on what were then unpopular causes.

In the mid-1800s, lawyer Thomas Kane represented the then-despised Mormons, who had been subject to the Missouri Governor’s Extermination Order and forced to migrate west. In the context of rising political tensions that would lead to the Civil War, President Buchanan ordered the U.S. Army to march on the Utah Territory to subdue what he referred to as the Mormon rebellion. President Buchanan had taken a hard line stance against the Mormons in his State of the Union address, and referenced the matter as part of his request for additional federal troops. Mr. Kane, a non-Mormon, came west to mediate the President’s claims – he defended the Mormons and helped resolve the dispute by persuading the Mormons to accept a non-Mormon territorial governor, President Buchanan to pardon any offenses by the Mormons in the conflict, and the Army to base its camp over 50 miles away from Salt Lake City.

Justice Robert Jackson’s dissent in Korematsu v. United States gives us another example of noble lawyering in the face of popular prejudice. Korematsu dealt with the constitutionality of President Roosevelt’s Executive Order 9066 authorizing military leaders to confine Japanese Americans to internment camps following the attack on Pearl Harbor. In 1944, the Supreme Court upheld the constitutionality of the Order and the conviction of a Japanese-American for evading internment. In his dissent, Justice Jackson acknowledged the perceived need for deference to the military but spoke out against the Order’s racism: “But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.”

In similar circumstances a few years later, Judge McKay pointed out that a lawyer named Joseph Welch stood up to Senator Joe McCarthy’s accusations that Welch’s partner, a lawyer who had belonged to the National Lawyers Guild in law school, was therefore a communist sympathizer: “Have you no sense of decency, sir, at long last? Have you no sense of decency?”

I would extend Judge McKay’s remarks to some of the hot-button issues of the day.  Regardless of how we feel about issues such as the rights of enemy combatants, the war on terror, or even legislation like DOMA, we must acknowledge the need for lawyers who represent their clients zealously within the law, regardless of the perceived popularity of the cause.  Judge McKay pointed to the noble defense provided by lawyers to the prisoners at Guantanamo Bay. Some of these lawyers have been labeled terrorist sympathizers.

I believe we should also acknowledge the nobility of those lawyers who advised President George W. Bush in similarly trying circumstances on the other side of the issue. These lawyers, such as John Yoo, who liberal groups have labeled an “enemy,” were asked to advise the President. They took on the engagement with the same zeal as the lawyers representing the Guantanamo prisoners – there is no cause to impugn their integrity or loyalty simply because you might disagree with their legal conclusions.

Finally, the subject of Judge McKay’s address is most timely with regards to King & Spalding’s representation of the United States House of Representatives in defending the constitutionality of DOMA in litigation that is likely to end up in the Supreme Court. DOMA defines marriage as between a man and a woman and holds that states may not be compelled to recognize same-sex marriages performed in other states. The act was passed in 1996 with overwhelming majorities in the Senate (85-14) and House (342-67) and was signed into law by President Clinton.  Though President Obama supported the policy when he ran for President in 2008, and his Justice Department was obligated to defend it, the issue has become contentious in recent years.  Last fall, after providing what was admittedly a half-hearted defense of the law, the Obama administration changed course and flat out refused to defend it. In response, Speaker of the House John Boehner deemed it necessary to retain private counsel to defend the law. King & Spalding agreed to take the case, and former Solicitor General Paul Clement, a partner at King & Spalding, was to be the lawyer principally responsible.  It appears the firm entered into the engagement with perhaps some of the same noble intentions that John Adams exhibited in 1770.

But less than one week later, after receiving threats from liberal interest groups who influenced major clients such as Coca-Cola, and others, King & Spalding weakly withdrew from the DOMA case, citing an insufficient vetting process. Clients beware – King & Spalding has shown itself to be the anti-Adams: it is not a place where “facts are stubborn.” Its lawyers are subject to the winds and waves of perceived public opinion, and once engaged you just never know how committed they will turn out to be. In a world of many lawyers, but not enough good ones, the firm has shown itself to be … expendable.

In response, Paul Clement left the firm to continue his representation of DOMA.  Perhaps acknowledging the legacy of Adams, even President Obama and Attorney General Eric Holder have defended his decision in light of King & Spalding’s act. May we Americans ever acknowledge the principles of our founding fathers.

Judge McKay concluded his remarks observing that courageous lawyering involves courageous living. We won’t all face drastic unpopular cause situations that demand the courage of John Adams, Paul Clement and others. But there will always be opportunity to stand for the craft of lawyering, even for the unpopular client of the moment.  As Judge McKay admonished: the winds of popularity shift, and today’s majority could just as easily be tomorrow’s hated minority.

So, be generous with your praise of a lawyer’s zealous representation. And be generous with your time and skills, if ever the situation arises where you need to stand up and defend those in need of a vigorous defense.


Michelle Mumford Doma GuantanamoMichelle Mumford is a conservative political activist, an attorney, and mother of four. You can find her on Twitter at @MichelleMumford and on her blog at Utah Vanguard.

  • http://www.utahpoliticalsummary.com Curt Bentley

    Good post. I have great respect for Judge McKay, and Justice Jackson has long been a favorite of mine. I would like to point out, though, that he (Jackson, J.) is the author of Wickard v. Filburn. And I’ll just leave that one hanging and let everyone do with it what they will :)

  • Steven Burt

    Interesting post, and well-written. However, indicting King & Spalding for its decision to not defend DOMA by arguing that act to be the cowardly inverse equivalent of Adams’ courageous defense of British soldiers on trial for the Boston Massacre is a stretch.

    Adams volunteered to represent the soldiers in the face of overwhelming public opinion against them, at great risk to his reputation and personal safety, for little or no money, because he believed fervently that every person deserves a defense. King & Spalding did not volunteer to defend DOMA, but was hired to do so, and by the United States House of Representatives, to boot. As highlighted in your post, DOMA passed with “overwhelming majorities” in the House and Senate, which hardly makes defending it even close to the equivalent of Adams’ representation of the soldiers, as the latter was squarely against virtually unanimous public opinion. Finally, as mentioned, King & Spalding does not appear to have initially agreed to take on representation of DOMA because it fervently believes that States should not be subject to the full faith and credit clause when it comes to recognizing same-sex marriages performed in other States, but instead because the House of Representatives offered to pay it to do so. King & Spalding’s ultimate decision to not defend DOMA was a business decision, pure and simple — characterizing that decision as a failure on King & Spalding’s part to “honor its commitment” to defend DOMA is a bit melodramatic.

    Perhaps the real story here is the extent to which we’ve internalized the Randian notion that we shouldn’t do things that are not in our interest. This is fodder for another post, but if King & Spalding initially concluded that defending DOMA was in its rational self-interest, and then before it had gotten underway in doing so determined, based on additional information, that it was not in its interest, then did it not make the right decision? If you subscribe to Rand’s philosophy, I don’t know how you can answer that question in the negative. (Incidentally, I do not subscribe to Rand’s philosophy, as I believe it minimizes and even ridicules the very attributes that separate us from the animal kingdom and make us noble. Rand would almost undoubtedly have considered Adams a fool for having represented those soldiers. Again, a post for another day).

    I admire Adams for his representation of those British soldiers, and I think Judge McKay’s point is well taken. But, Judge McKay’s inspiring remarks about Adams’ selfless and noble act simply do not apply to King & Spalding’s decision to not defend DOMA.

  • http://utvanguard.wordpress.com Michelle Q. Mumford

    Thanks for your thoughtful comments. You seem to be making three points:

    1. K&S should not be criticized because they were “hired” while John Adams “volunteered.” Set aside for a moment how the terms of the two engagements may compare (we know Adams was only paid a few guineas for his work, and while it is common for large firms to take on high profile public interest work pro bono or at reduced rates, I don’t know how much K&S was to be paid for its work on the DOMA case). To the extent there is any distinction along these lines, I think it’s one without a difference. My point is not whether they were “hired” or “volunteered,” it is what they were hired or volunteered to do: represent a client in an unpopular cause. Being retained as a lawyer is more than a contractual transaction. It’s what distinguishes the legal profession as a noble profession — which is one of the points Judge McKay was trying to make. So, I think my point holds up in this respect. When the going got tough, Adams stuck with it in the face of political costs, while K&S shamefully bailed. Along these lines, you assert that K&S only took the DOMA case because it was going to get paid, and not because it believes in the principles at stake in the case. You seem to be making assumptions there. In fact, the lead attorney on the case, the now-former K&S attorney Paul Clement, is a well-respected former solicitor general with well-known views concerning judicial restraint, such as those set forth in Federalist No. 78. We don’t know what Mr. Clement thinks about the wisdom of DOMA itself. But that Mr. Clement would resign from the firm to continue his representation of DOMA demonstrates his Adams-like principles. That the firm would, in your characterization, fill its pockets with money from the House of Representatives until other groups who disagreed with DOMA criticized the firm would reveal a deeper level of duplicitousness than even I initially supposed.

    2. K&S’s representation of DOMA is different because DOMA was popular. Without getting into the popularity of any particular measure over time, my point was limited to the popularity of a legal defense at the time of the engagement. K&S knew at the time of its engagement that there was the potential for blowback from powerful anti-DOMA activists. That they folded in the face of that blowback is the point of my article criticizing their actions.

    3. Finally, while the philosophy of Ayn Rand was not mentioned in my article, I’ll try to address the point you seem to be making about her philosophy of self-interest. I respect Rand as a novelist and political critic. I don’t carry a belief for all aspects of her philosophy. But I think you are misconstruing her thoughts about self-interest. She takes the long-view of self-interest: that we should always act in ways that are true to our principles and true to ourselves as opposed to compromising those principles for the sake of others or doing just what is convenient in the moment. That is what she means by “self interest.” And she goes on quite a bit about it. A thousand pages or so. I don’t know what she would have thought of DOMA. If I were to guess, she would probably disagree with DOMA as an act of federal legislation. But I think she would agree with me that once anyone commits himself to a cause that he takes on freely, be it a legal engagement or a contract to supply steel to a railroad, he should carry it out and conduct himself in a manner befitting a free man taking on a cause, and not simply bend to the will of others who may criticize or disagree along the way.

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