WASHINGTON (CN) — A lawyer representing the conservative megadonor who has for decades footed the bill on secret transactions benefitting Supreme Court Justice Clarence Thomas argued in a letter Monday that lawmakers have no legal grounds to force the high court to adopt a code of ethics — or even to put a spotlight on the underlying controversy.
Democrats on the Senate Judiciary Committee began their inquiry in response to revelations that Justice Thomas neglected to report decades of lavish vacations and other gifts from billionaire real estate developer Harlan Crow. Lawmakers earlier this month turned up the heat on the conservative property magnate, requesting that he turn over an itemized list of gifts and payments made to the high court judge over the years and positioning that demand as part of a legislative effort to develop a code of ethical standards for the Supreme Court.
Now, a lawyer representing Crow has attacked the constitutional foundation of Senate Democrats’ inquiry, suggesting in a letter sent Monday to Judiciary Committee Chair Dick Durbin that lawmakers are instead pointing the finger at Justice Thomas as part of a smear job against the jurist.
A person familiar with the matter provided Courthouse News with the letter on the condition of anonymity because the information it contains is confidential. In it, the real estate developer’s counsel rejects the request for financial information, argues that that lawmakers have not identified a “valid legislative purpose” for their investigation, and contends that any bill aimed at regulating the conduct of the Supreme Court would violate the Constitution’s separation of powers doctrine.
“As you know, Congress may only act pursuant to its enumerated powers,” Crow’s counsel Michael Bopp wrote. “None of those enumerated powers includes the authority to regulate the internal affairs and operations of the Supreme Court, a coequal branch of government.” Because legislation targeting the Supreme Court would be unconstitutional, Democrats’ investigation into Thomas is invalid, the Gibson Dunn attorney added.
A congressionally mandated code of ethics would also supplant the Supreme Court’s ability to self-regulate, Bopp told Durbin, pointing to a statement of ethics principles sent to the committee chair in April by Chief Justice John Roberts — a document signed by all nine justices.
“Like the President, the Court is the head of a coequal branch, and derives its powers directly from the Constitution, not from and act of Congress,” the letter states. “That means that Congress cannot insert itself into how the Court exercises its duties.”
Bopp also took aim at Democrats’ focus on Crow’s relationship with Justice Thomas, arguing that the committee’s demands for information on financial transactions between Crow and the jurist were neither necessary nor relevant to an effort to develop a code of conduct for the Supreme Court.
The real estate magnate’s relationship with Justice Thomas is now public information, the letter contends. “The particular details of Mr. Crow’s relationship with Justice Thomas would not meaningfully aid the Committee in crafting a new ethics code — or add anything to the Committee’s deliberations beyond what publicly available information and its own expertise and experience can provide.”
Bopp sought to further poke holes in the legitimacy of Democrats’ investigation, contending that the inquiry is more about Justice Thomas himself than the Supreme Court as an institution.
“It is clear that the Committee’s investigation is part of a larger campaign to target and intimidate Justice Thomas and unearth what the Committee apparently believes will be embarrassing details of the Justice’s personal life,” the letter states.
Crow’s lawyer questioned the timing of the congressional investigation, pointing out that lawmakers started looking into Justice Thomas’ conduct shortly after asking Chief Justice Roberts to conduct an independent investigation that has yet to materialize.
The letter accuses Democrats of using their inquiry to “expose for the sake of exposure; to embarrass and harass a specific Supreme Court Justice.”
Senate Democrats, meanwhile, were incensed by this response from the real estate developer’s proxies, positioning it as an attempt to sidestep congressional oversight on someone unaffiliated with the Supreme Court.
“The letter that the Committee received last night from a law firm representing Harlan Crow did not provide a credible justification for the failure of Mr. Crow and three corporate entities to respond to the Committee’s written questions,” Durbin, the Judiciary Committee chair, wrote in a statement Tuesday morning.
The Illinois Democrat fired back at Crow’s counsel, arguing that the constitutional arguments laid out in the letter don’t give the real estate magnate authority to reject lawmakers’ request for information, as Crow has never been an employee of the Supreme Court. Durbin also pushed back on the claim that Congress has no authority to enact laws that apply to the high court justices — contending that Chief Justice Roberts’ April 25 ethics statement acknowledged congressionally enacted ethics laws.
“Harlan Crow believes the secrecy of his lavish gifts to Justice Thomas is more important than the reputation of the highest court of law in this land,” Durbin said. “He is wrong.”
The judiciary panel chairman, a self-described proponent of Supreme Court ethics reform, said that the committee plans to soon issue a full response to Monday’s letter and will continue its efforts to secure the requested financial information from Crow and his companies.
Democrats demanded on May 9 that Crow turn over a list of all gifts, payments and other items valued at over $415 that he has ever provided to any Supreme Court Justice or member of their family. Lawmakers also wrote the heads of holding companies managing the real estate developer’s private jet and yacht — as well as the owners of Camp Topridge, a 105-acre estate in the Adirondacks owned by Crow where Justice Thomas has reportedly stayed.
The reports about Crow's secret bankrolling of vacations for Thomas, first reported in April by investigative journalism outfit ProPublica, spurred the jurist to issue a rare public statement in which he said he had consulted court officials and other justices who advised him that his friend’s generosity did not require disclosure. He has not responded to ensuing reports amid insight from some experts that Thomas may have violated court regulations.
Further reporting has revealed that Crow had also purchased property from the justice and paid private school tuition bills for a nephew in Thomas’s custody.
The Senate is now considering two pieces of legislation aimed at forcing the Supreme Court to adopt a code of ethical standards. One, proposed by Rhode Island Democrat Sheldon Whitehouse, would force justices to develop such a framework and make it available for public comment. The other, a nonpartisan effort between Alaska Republican Lisa Murkowski and Maine Independent Angus King, would leave the onus squarely on court officials for such a process.
Chief Justice Roberts has long rejected the need for a Supreme Court code of ethics, pointing to a 2011 year-end report that concluded that the high court need not be held to the same ethical standards as lower benches.
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