WASHINGTON (CN) — Weeks after a conservative billionaire at the center of Senate Democrats’ investigation into the Supreme Court’s ethics woes refused to disclose his financial transactions with the high court justices, a second individual implicated in the probe has followed suit, arguing lawmakers are violating his constitutional rights.
As part of their ongoing inquiry into reports of ethically questionable conduct among Supreme Court justices, Democrats on the Senate Judiciary Committee have recently taken aim at a cadre of conservative figures who they claim have exerted their influence on the jurists by lavishing them with expensive gifts and vacations. Among those persons of interest is Leonard Leo, longtime head of the conservative legal group the Federalist Society, who in 2008 reportedly coordinated a fishing trip for Justice Samuel Alito and a Republican billionaire who later had business before the court.
Led by Illinois Senator Dick Durbin and Rhode Island Senator Sheldon Whitehouse, Senate Democrats have demanded details of financial dealings between Leo and any of the high court’s jurists — a request that the judicial activist’s lawyers roundly rejected in a letter to the lawmakers Tuesday.
Penned by David Rivkin, a partner at the Washington-based law firm Baker & Hostetler, the letter accused Durbin and Whitehouse of “selectively targeting Mr. Leo for investigation on a politically-charged basis.” Democrats’ probe oversteps congressional authority and requests for Leo’s financial records violate his First Amendment and Fifth Amendment rights, Rivkin argued.
Leo’s attorney accused Democrats — Whitehouse in particular — of engaging in a “campaign of innuendo and character assassination,” pointing to comments the lawmaker made in committee and on social media and contending that Whitehouse’s statements prove Leo is being targeted for political purposes.
“Mr. Leo and the groups with which he is affiliated have been subjected to a barrage of disparaging remarks because of their views on judicial nominations and other judicial matters,” Rivkin wrote.
The lawyer also suggested that the Democrats’ inquiry was one-sided, focusing more on the ethical conduct of conservative justices such Clarence Thomas and Alito and less on the liberal side of the bench. Rivkin listed several examples of what he said was similarly questionable conduct from left-leaning jurists, including reports that Justice Sonia Sotomayor used her court staff to promote book sales.
“None of these incidents has resulted in inquiries from the Committee,” Rivkin said.
Further, Leo’s attorney pushed back on claims from Democrats that their investigation into the conservative activist supports the development of Supreme Court ethics legislation.
“Congress cannot conduct an investigation in connection with legislation that it cannot constitutionally enact,” Rivkin said, referencing Whitehouse’s Supreme Court Ethics, Recusal and Transparency Act, which cleared the judiciary committee on a highly partisan vote last week.
The Rhode Island Democrat’s bill, which would require the Supreme Court to draft a formal code of ethical standards and would allow individuals to lodge ethics complaints against justices, violates constitutional separation of powers doctrine, Rivkin argued.
Quoting a Cold War-era speech against congressional persecution of would-be Communists, Rivkin drew a stark comparison that doubled down on Leo’s refusal to cooperate with Democrats’ ethics probe.
“‘Turning the Senate into a ‘platform of irresponsible sensationalism’ where an individual's 'right to hold unpopular beliefs and right of independent thought’ are disregarded is a course that we know from past experience can serve no good end,” Rivkin wrote, borrowing sections from Senator Margaret Chase Smith’s 1950 speech which served as a rebuke to Joe McCarthy and the House Un-American Activities Committee. “We will not be part of that journey.”
Leo’s rebuke of Senate Democrats comes just weeks after real estate developer Harlan Crow refused similar demands to turn over information related to his relationship with Thomas, making a nearly identical constitutional argument against complying with the investigation.
At the time, Durbin blasted Crow’s defense as “a dangerous, undemocratic argument” and threatened to subpoena the real estate developer for his financial records.
Justice Thomas reportedly accepted high-dollar gifts from Crow, including vacations on the megadonor’s private yacht and a stay at his estate in upstate New York. Thomas neglected to report these gifts to the high court, a move which he has said was greenlit by court staff and fellow jurists. Some legal experts, however, have said that the justice may have run afoul of the Supreme Court’s financial reporting law.
The Supreme Court has no formal code of ethical conduct, and Chief Justice John Roberts has been reticent to take matters into his own hands. Roberts, who has previously said that the high court need not be held to such stringent ethical standards, tried to appease Senate Democrats in April by sending Durbin a statement of ethical principles signed by all nine justices — a move that left lawmakers far from satisfied.
Democrats have positioned Whitehouse’s bill as a disinfectant for ethics concerns at the high court. During last week’s bill markup, Durbin stressed that the measure would apply as strictly to liberal justices as it would to the conservative jurists drawing lawmakers’ ire.
“The reforms we are proposing would apply in equal force to all justices,” the Illinois Democrat said.
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