Threat of ‘subpoena war’ looms large as Senate considers judicial nominees

WASHINGTON (CN) — The Senate Judiciary Committee’s Republican leader told colleagues Wednesday that the GOP was readying a return volley against Democrats after lawmakers announced this week that the panel would vote on subpoenas for a trio of figures central to their Supreme Court ethics probe.

All ten members of the judiciary panel’s GOP contingent will oppose the effort to issue legal summons to Harlan Crow, Robin Arkley and Leonard Leo, Senator Lindsey Graham said during a committee hearing.

The South Carolina Republican and ranking committee member announced that he and Iowa Senator Chuck Grassley, also a Republican, were working on their own slate of subpoena requests. Graham did not specify the intended recipients of such legal summons or on what grounds they would be issued.

“If you want a subpoena war, you’re going to get one,” Graham said. “I can’t believe we’re doing it in the middle of all this stuff, but here you go.”

A spokesperson for Graham’s office did not immediately return a request for additional details.

Judiciary Committee Chair Dick Durbin, who announced Monday that he would hold an authorization vote on the proposed subpoenas, did not respond to Graham’s comments during the hearing.

Led by Durbin and Rhode Island Senator Sheldon Whitehouse, Democrats have for months been investigating reports that Supreme Court justices have failed to adequately disclose gifts and other hospitality from influential benefactors such as Crow, Arkley and Leo. The committee chair on Monday framed the drastic legal recourse as a last resort, pointing out that all three men had refused to sufficiently comply with voluntary information requests.

Republicans, however, have balked at the subpoena threat, arguing that Democrats are trying to exert undue influence on private citizens and the Supreme Court.

In a statement Wednesday, Utah Senator Mike Lee accused Democrats of using the Judiciary Committee to “persecute Americans for exercising their First Amendment rights.”

Lee rehashed a now-familiar argument among GOP lawmakers — that Democrats’ interest in Supreme Court ethics issues comes as retaliation for a string of recent rulings from the high court’s conservative majority.

“I understand that Democrat activists are furious that a majority of the Supreme Court now takes the Constitution seriously,” he wrote, “but they cannot reshape the Court in their image by harassing justices who are committed to upholding the Constitution and the private citizens who dare associate with them.”

As the possibility of dueling subpoenas loomed, meanwhile, the Judiciary Committee heard testimony from the Biden administration’s latest slate of judicial nominees, including two appointees for district court vacancies, one circuit court nominee and the White House’s pick for assistant attorney general in the Justice Department’s Office of Legal Counsel.

While Democrats hailed the nominees as well-qualified, some committee Republicans dialed in on First Circuit appointee Seth Aframe, attempting to paint him as soft on crime.

Graham called attention to a 2020 case Aframe tried as an assistant U.S. attorney, in which he recommended a 30-year prison sentence for a man convicted of sexually assaulting a minor.

Graham, reading a statement attributed to Aframe, said the attorney had justified his recommendation by arguing that the defendant would be in his 60s at the end of his sentence and would “hopefully” pose less of a danger to society.

“Is it your testimony before this committee,” Graham said, “that you age out in terms of being a sexual predator against children?”

Aframe pointed out that he had followed federal sentencing guidelines but added that “certainly there’s an argument” that as a person gets older they become less dangerous.

“It’s challenging to predict what’s going to happen to someone,” he said — especially after a 30-year sentence.

Tennessee Senator Marsha Blackburn offered an animated rebuke to Aframe’s defense. “Hopefully? You’re going to deliver justice to this guy who has a record, he’s a sexual predator. Were you really basing your sentiments on hope?”

Blackburn also sparred with Aframe over a separate case in which he recommended a 60-year prison sentence for a man convicted of producing child pornography. The Tennessee Republican argued that federal guidelines recommend life in prison, and that the attorney had suggested a sentence far below what is standard.

Aframe fired back, saying that the statutory maximum sentence for production of child pornography is 30 years in prison and that the sentencing guidelines are overridden by such legal boundaries.

“The guidelines provide a sentence, but ultimately what controls are the statutes,” Aframe said. “He was convicted on two counts, and the statutory maximum was 60 years.”

Carl Tobias, chair of the University of Richmond School of Law, said that Aframe demonstrated himself as a highly experienced nominee who will “honor precedent and clearly uphold the rule of law.” He pointed out that the attorney’s experience clerking for the outgoing First Circuit Judge Jeffrey Howard would prepare him well for the position.

Aframe is the White House’s second nominee for the First Circuit, after New Hampshire Attorney General Michael Delaney withdrew his nomination in May. Delaney faced bipartisan criticism for his role in a sexual assault case against a New Hampshire boarding school, during which he pushed for the victim to make their identity public.

Committee Republicans also cast aspersions on Christopher Fonzone, selected by the Biden administration to be assistant attorney general in the Office of Legal Counsel at the Justice Department.

Republican Missouri Senator Josh Hawley grilled Fonzone, currently general counsel at the Office of the Director of National Intelligence, about his work as a private attorney for law firm Sidley Austin. In particular, the lawmaker was interested in legal work Fonzone did for China’s commerce ministry and telecommunications company Huawei.

“I did a small amount of work at the request of other partners, much of it many years ago,” Fonzone said. “None of that work has affected my ability to give objective advice in my current role at the Office of the Director of National Intelligence, and none of it would if I was fortunate enough to be confirmed.”

Fonzone faced similar questioning from Republicans in 2021 during confirmation hearings for his current role at ODNI.

Follow @BenjaminSWeiss

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