Senate Democrats are targeting private citizens in an effort to manipulate the Supreme Court. Democrats on the Judiciary Committee, led by chairman Senator Dick Durbin (D-Ill.) and Senator Sheldon Whitehouse (D-R.I.), announced on Monday that they will vote to subpoena Harlan Crow and Robin Arkley, who have donated money to conservative Supreme Court justices and Leonard Leo.
The co-chairman of the Federalist Society, Leo is credited with landing Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh on the Supreme Court and is a friend of originalist Justices Clarence Thomas and Samuel Alito, who have been targeted by Democrats over the past several months over alleged “ethics” issues.
Judiciary Committee Democrats began seeking information from Leo back in July regarding his interactions and communications with Supreme Court justices. Leo and his attorney responded with a letter on July 25, raising “various legal objections to the committee’s requests for information from Mr. Leo about his interactions with Supreme Court Justices,” according to the letter, which was shared with The Washington Stand.
Leo argued that the Senate did not have the authority to demand the information in question without a constitutionally valid reason, with attorney David Rivkin, Jr. noting that the Judiciary Committee has been “largely silent as to why our objections are supposedly unfounded, leaving us with only the Committee’s ipse dixit that we are obligated to turn over the extensive and sensitive personal information it seeks.” Rivkin also noted, in his letter of October 19, that the Judiciary Committee took nearly three months to respond to his July letter rebutting their requests for information.
In comments to The Washington Stand, Leo declared, “I will not bow to the vile and disgusting liberal McCarthyism that seeks to destroy the Supreme Court simply because it follows the Constitution rather than their political agenda.” Rivkin called the Judiciary Committee’s harassment of Leo “a form of political retaliation in violation of the First Amendment and the Equal Protection component of the Due Process Clause.” He added, “The shallowness of the committee’s supposed legislative purpose clearly manifests the committee’s true aims. In actuality, the committee is out to smear, impugn, and punish Mr. Leo, because the committee Democrats do not like his political advocacy, and they want to shut it down.”
In support of this claim, Rivkin listed a number of statements made by Democrats on the committee — mostly Durbin and Whitehouse — smearing Leo as the ringleader of a “filthy web of dark money, right-wing billionaires, compliant Supreme Court Justices.” Rivkin noted that such statements “remove any doubt, if there was any to begin with, that the committee is targeting Mr. Leo out of hostility toward his political views and associations.” Whitehouse in particular has made alleged “dark money” a mainstay of his Senate career, hosting a YouTube series and publishing a book, both called “The Scheme,” alleging right-wing billionaires have essentially bought the U.S. Supreme Court. In his book, Whitehouse singles out by name the Federalist Society, of which Leo is co-chair.
“The Committee Democrats’ statements are merely one of many indications that this inquiry is driven by a desire to harass and silence Mr. Leo,” Rivkin continued. “Another hallmark of unlawful First Amendment retaliation is an incongruity between what government officials say they are trying to accomplish and what they actually do.” The attorney pointed out that if the Judiciary Committee were truly concerned with who had access to and influence over justices, they would be examining both disclosed and undisclosed gifts, payments, reimbursements, and the like, not focusing on obtaining private information regarding friendships and communications two specific justices have had.
Justice Thomas has been treated by real estate developer Harlan Crow, his friend of about 25 years, to trips on his yacht and private jet, while Justice Alito was taken on a fishing trip by mortgage broker Robin Arkley about 15 years ago. Thomas failed to initially disclose Crow’s gifts when the Judicial Conference Committee changed financial disclosure rules, while Alito argued he was not the beneficiary of a gift but of simple hospitality, which does not need to be reported. Democrats have been calling on Thomas and Alito to resign, citing the acceptance of such gifts or hospitality as a form of unethical conduct, a charge both justices have rejected.
Reciting a litany of disclosed instances in which left-wing justices may have been exposed to undue influence through gifts or events, Rivkin said that “what the committee clearly cares most about is obtaining information that it believes will help it punish and embarrass people like Mr. Leo with whom committee Democrats have political disagreements.” Furthermore, he noted that the committee supposedly requested such information to support its drafting of legislation to bar Supreme Court justices from weighing in on certain cases by forcing them to recuse themselves.
But the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act was already approved by the committee and forwarded to the full Senate to be voted upon. “Logically,” Rivkin explained, “that means the committee must have concluded that it already had enough information to make an informed legislative decision about what kinds of ethics reforms are needed. Despite this, the committee’s investigation carries on, and a renewed request for information has been lodged…” He added, “The sequencing of bill writing, bill consideration, and bill reporting followed by purported factual investigation is odd, to put it charitably.”
Given that the SCERT Act, the basis for the investigation, was voted out of committee months ago, Rivkin argued that the Judiciary Committee no longer has any right to the information it is requesting from Leo and others and is, in fact, forbidden by the Constitution from pursuing the point. He wrote:
“Here, the unnecessary disclosure of details about Mr. Leo’s private life is not just the predominant intended result of the committee’s inquiry, it is likely the only result. Any information Mr. Leo might share with the committee could not possibly aid in the drafting of a bill that has already been reported out of committee. … Instead, as we have stressed, the committee’s inquiry actually appears to be undertaken for the unfortunate and improper purposes of scoring partisan points against a detested political opponent and vilifying him in the court of public opinion.”
Rivkin added, “Similarly, the committee’s attempt to manufacture the appearance of wrongdoing on the part of Mr. Leo in connection with an alleged ‘financial scheme’ to ‘influence the Supreme Court’ … is not a valid legislative purpose; it is an attempted congressional prosecution.”
Leo’s attorney also offered his scathing criticism of the SCERT Act, writing at one point, “These provisions, if they were to ever become law, would be blatant usurpations by Congress of the judicial power.” He noted that the SCERT Act, if approved, would essentially invert the structure of the courts, giving inferior courts the right of oversight over the Supreme Court, and would make the courts subordinate to Congress instead of being a co-equal branch of government.
Republicans have already united against the SCERT Act, correctly asserting that it would dismantle the courts and “destroy” a co-equal branch of government as enumerated in the Constitution. None of the Republicans on the Judiciary Committee supported the legislation — all suggested amendments and ultimately voted against it. The legislation is unlikely to succeed in the closely-divided Senate and even less likely to succeed in the Republican-controlled House.
Earlier this year, Washington, D.C. Attorney General Brian Schwalb launched an investigation into Leo and organizations with which he has been affiliated, mostly Catholic nonprofits, citing allegations of financial mismanagement and violations of nonprofit tax law. Although Schwalb’s investigation has yet to be concluded, House Judiciary Committee chairman Rep. Jim Jordan (R-Ohio) and House Oversight Committee chairman Rep. James Comer (R-Ky.) announced on Monday that they would be launching a congressional investigation into the D.C. Attorney General for his harassment of Leo.
The congressmen called Schwalb’s investigation “improper and politically motivated,” writing, “Given prior attempts by state attorneys general to target conservative nonprofits and their donors — and your apparent political motivations for investigating Mr. Leo — the committees are concerned about potential infringement on free association and donor privacy.” They also noted that, in addition to potentially violating the constitutionally-protected right to free association and donor privacy, Schwalb may be operating outside his jurisdiction, as neither Leo nor the nonprofits under investigation are located in D.C.
S.A. McCarthy serves as a news writer at The Washington Stand.
