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Imagine your attorney, bound by law and ethics to represent your side in a case, suddenly announces to the judge you should lose.
That, essentially, is what U.S. Attorney Melinda Haag in the U.S. Attorney’s office for the Northern District of California is accused of doing.
A complaint has been filed against her by the Pacific Justice Institute, which earlier announced a campaign to hold federal prosecutors accountable for their abandonment of their clients, the U.S. taxpayers, in disputes over the federal Defense of Marriage Act.
The law, adopted in 1996, defines for federal purposes a marriage can be between only one man and one woman.
But Barack Obama and his hand-picked attorney general, Eric Holder, early in his term announced suddenly the government no longer would defend the federal law.
U.S. attorneys then began to submit paperwork to courts in various cases that essentially argued the decision should be against their client, the U.S. government.
In a recent case, the Department of Justice argued to the court: “This court should hold that Section 3 of DOMA unconstitutionally discriminates. Section 3 treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition and significant federal benefits otherwise available to married persons.”
When the campaign to hold prosecutors accountable was launched, PJI chief counsel Kevin Snider said government lawyers “are essentially rising from the table for counsel for the defendant, walking across the courtroom and sitting down at the plaintiff’s table.”
“These attorneys are now seeking to have judgment taken against the party that they represent – the United States,” Snider said.
He said what the DOJ is doing would be “unthinkable for any other lawyers.”
Now the organization has filed an 82-page complaint against Haag with the state bar in California for her handling of litigation involving DOMA.
The complaint, filed in Los Angeles, “alleges that federal attorneys litigating a case challenging the constitutionality of DOMA intentionally took action to sabotage the case and prejudice the federal defendants that they were charged with defending,” PJI said.
The organization explained that for more than a year, counsel for the government and U.S. taxpayers defended DOMA.
“Prior to switching sides in the litigation, discovery had been served and a motion to dismiss filed,” PJI said. “But shortly after Attorney General Eric Holder and President Obama waffled and then flip-flopped on the law, Haag and other government lawyers started submitted papers with the court in an attempt to undermine the defense.”
Brad Dacus, president of PJI, said there can be little doubt “that government lawyers filed papers with the court calculated to render judgment against their own clients.”
“The actions of these federal lawyers turn our adversarial system on its head,” he said.
A public relations representative for Haag told WND he would try to reach her and ask whether she wanted to respond to questions about the case.
The campaign previously released a list of U.S. attorneys who could be subject to such complaints for their DOMA case work.
Joining Haag on the list were Peter C. Anderson of Los Angeles, Jesi J. Carlson of Washington, R. Randall Campbell of Washington, Stuart F. Delery of Washington, Scott Dunn of New York, David Fein of Connecticut, Patrick J. Fitzgerald of Chicago, August E. Flentje of Washington, Helen Gilbert of Washington, Samuel P. Go of Washington, Arthur R. Goldberg of Washington, Will Gunn of Washington, Christopher R. Hall of Washington, Eric Holder of Washington, Benjamin S. Kingsley of Washington, David J. Kline of Washington, Robert E. Kopp of Washington, Victor M. Lawrence of Washington, Jean Lin of Washington, Judson O. Littleton of Washington, Ronen Morris of Washington, William H. Orrick III of Washington, Carmen M. Ortiz of Boston, Craig Arthur Oswald of Chicago, Susan K. Rudy of Washington, W. Scott Simpson of Washington, Michael Jay Singer of Washington, Jill M. Sturtevant of Los Angeles, Carolyn Washington of Washington, Tony West of Washington, Thomas Scott Woodward of Tulsa, Okla., and Hatty Yip of Los Angeles.
DOMA has become part of the collateral damage of Obama’s campaign to promote homosexuality, bisexuality, transexuality and other sexual lifestyles.
The law defines marriage as a relationship between one man and one woman for federal purposes. However, in February 2011, Holder sent a letter to House Speaker John Boehner saying the DOJ, under Obama, would not defend DOMA any longer.
“There are times when a lawyer gets out of a case,” PJI reported. “When that is done, the attorney withdraws and another firm is substituted in as counsel. Initially, to his credit, the attorney general gave Congress the opportunity to intervene in the DOMA cases to defend the law.
“Acting through the Bipartisan Legal Advisory Group (BLAG), that is what occurred. BLAG hired a private law firm which has been defending the law in the courts, and even has filed papers with the U.S. Supreme Court to bring final resolution to this issue,” the institute said.
“That should have ended the DOJ’s involvement in the litigation. Shockingly, lawyers for the government stayed in the cases and began filing papers with the courts arguing against DOMA. In all but one of the cases, the department has filed papers stating that DOMA is unconstitutional.”
The implications are staggering, said Snider. Not only is it a case of a defense attorney getting up, moving across the room and sitting down at the table for counsel for those suing the citizens of the U.S., but it creates the opportunity – if allowed to stand – for a president to veto any existing law he or she doesn’t like.
“This would give the executive branch a constructive veto over any law,” he explained.
Whatever already is on the books as a law of the U.S., when challenged, simply could be allowed to fall, he said.
Snider warned of the “enormous power” such a precedent would grant presidents.
For example, a president who objects to the income tax could order the IRS to stand down and not defend any tax laws. Default judgments would follow, and the tax laws would be struck.
When an administration previously determined a law to be unconstitutional, a procedure was set up for an intervenor to challenge it, and then a court would make the determination, he said.
In this case, complaints are being developed against more than 30 U.S. and Department of Justice attorneys who worked on 18 different cases.
“Government lawyers initially filed briefs defending DOMA, then abandoned that defense altogether and began filing papers in support of the plaintiffs in those cases,” PJI reported.
They are being prepared for filing in 10 jurisdictions, including California, New York, Texas, Illinois, Pennsylvania, Virginia, Massachusetts, Connecticut, Oklahoma and the District of Columbia.
“When the United States and its agencies are sued over the Defense of Marriage Act, the clients are not the president or the attorney general – the clients are the people of the United States,” noted Dacus. “It is bad enough for the Department of Justice to abandon its clients, but it is unethical and sanctionable for those attorneys to switch sides and ask for judgment leading to damages and attorneys’ fees against their own clients. We are calling on state bar authorities to simply undertake the same investigations and disciplinary actions they would take against any other lawyers who flagrantly violate their duties of client loyalty.”
Snider said DOJ attorneys have filed pages and pages of legal arguments while “defending” DOMA that explain why the federal attorneys think the judge should rule against the law. Sometimes the attorneys representing the U.S. have asked the judge for a summary judgment – a decision without a trial – against their own clients.
Members of Congress recently went before the U.S. Supreme Court to ask for a review of a decision from the 1st Circuit Court of Appeals that declared the Defense of Marriage Act unconstitutional.
The request cites the “previously unknown standard of equal protection review” applied by the court and questions whether there is any conflict with the “equal protection component of the Due Process Clause of the Fifth Amendment.”
A friend-of-the-court brief has been filed by attorneys representing a long list of interested parties that suggests the Supreme Court justices should return to the Constitution, read it and apply it to the case.
Those represented in the brief say they are confident if that happens, DOMA will be affirmed as constitutional.
The petition urges the court “to grant the petition to review whether its various balancing tests, including strict scrutiny, intermediate scrutiny, and rational basis, are wholly unsuitable to the task of objective judicial review, as demonstrated by an illustrative review of this court’s decisions and the decision of the court below.”
“Unmoored from the constitutional text, this court’s tests have been, and if not abandoned will continue to be, used inconsistently by unelected judges in the unchecked exercise of raw legislative power,” the petition says.
“Congress, of course, did not invent the meanings of ‘marriage’ and ‘spouse’ in 1996. Rather, DOMA merely reaffirmed and codified the traditional definition of marriage, i.e., what Congress itself has always meant – and what the courts and the executive branch have always understood it to mean – in using those words: a traditional male-female couple.”