Harlan Crow’s Weak Argument for Refusing to Cooperate with Senate Investigators
The billionaire claims the Constitution forbids Congress from investigating the ethics of his financial arrangements with Justice Clarence Thomas.
THE SUPREME COURT IS IN CRISIS. Rocked last year by the leaking—still unsolved—of its Dobbs ruling, still adjusting to the new majority’s burst of conservative judicial activism, facing greater public distrust than at any time in the past half century, the Court is now in the throes of an ethics scandal centered on Justice Clarence Thomas: from failing to recuse himself from 2020 election-related cases when his wife Ginni Thomas was working to thwart President Joe Biden’s win, to secretly accepting lavish trips from Republican megadonor Harlan Crow, to keeping secret Crow’s purchase of multiple properties owned by the Thomas family in Savannah, Georgia, including the home of Thomas’s mother.
Congress is responding appropriately by holding investigative hearings, proposing a bicameral bill that would require the justices to follow a code of ethics, and sending letters requesting information from Crow and the various holding companies that own his private jet, his private yacht, and his private, invitation-only Adirondack resort, Camp Topridge.
The Senate Judiciary Committee is interested in identifying “the full extent of Mr. Crow’s and the corporations’ gifts to Justice Thomas, what other individuals were able to gain special access to Justice Thomas and any other Justices via the travel and lodging provided, and whether those individuals had interests before the Supreme Court.”
Crow has refused to comply, claiming that the request is unconstitutional. In a letter responding to the committee on Crow’s behalf, lawyer Michael Bopp of the elite law firm Gibson, Dunn & Crutcher argues that “Congress does not have the constitutional power to impose ethics rules and standards on the Supreme Court,” and therefore the whole investigation is illegitimate, ergo any related request from the committee is invalid.
If Bopp’s letter were filed with a federal court, it would come precariously close to violating Rule 11 of the Federal Rules of Civil Procedure, which enables courts to impose sanctions on lawyers for advocating excessively frivolous arguments. But before getting into the legal issues, let’s consider, for context, why Congress might be poking around Crow’s business with the Supreme Court in the first place.
HANGING ON A WALL at Camp Topridge—where guests enjoy access to three boathouses, 25 fireplaces, a clay tennis court, a batting cage, a life-size replica of the Harry Potter character Hagrid’s hut, bronze statues of gnomes, and a fully-staffed 1950s-style soda fountain—is a photorealistic painting depicting Crow and Thomas, along with lawyers Peter “Bo” Rutledge, Mark Paoletta, and Leonard Leo.
Thomas, who succeeded Justice Thurgood Marshall in 1991, has vacationed with Crow for over twenty years.
Rutledge is a former Thomas clerk and the current dean of the University of Georgia School of Law. He has filed numerous amicus briefs before the Supreme Court on behalf of the U.S. Chamber of Commerce and other business interests.
Paoletta, who served as general counsel for the Office of Management and Budget in the Trump administration, and who was Ginni Thomas’s attorney in her interactions with the House January 6th Committee, has called the public critiques of Thomas “malicious” despite acknowledging (and defending) Crow’s payment of Thomas’s grandnephew’s tuition—a gift that the justice did not disclose on his annual financial disclosures.
Leo, the co-chairman and former executive vice president of the influential Federalist Society, helped choose Donald Trump’s nominees to the federal bench, including his three Supreme Court picks, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Last year, Leo’s own new nonprofit, the Marble Freedom Fund, obtained a staggering $1.6 billion gift from Barrie Seid, an electronics manufacturing magnate. Believed to be the largest political donation in history, it has enabled Leo to pour hundreds of millions of dollars into conservative projects.
Long before that huge windfall, Leo was at the center of a web of mysterious dark-money organizations. An entity in Leo’s network paid between $1 and $5 million to purchase Kellyanne Conway’s polling company in 2017, at the same time she was advocating for judicial nominees as an adviser to Donald Trump during his presidency. Five years before that, in January 2012, Leo had instructed Conway to bill another nonprofit he advises, the Judicial Education Project, “another $25K” and to then forward the money she received to Ginni Thomas, emphasizing that the paperwork should have “No mention of Ginni, of course.”
The very same Judicial Education Project (which is now known as the “85 Fund” or the “Honest Elections Project”) filed an amicus brief in the Supreme Court in this term’s Moore v. Harper, the case involving North Carolina gerrymandering that is pushing a dangerously fringe idea known as the “independent state legislature theory.” If accepted by the Court’s majority, which would undoubtedly include Clarence Thomas, the theory would hold that under the U.S. Constitution, only state legislatures can make laws governing elections—even if that means violating state constitutions as interpreted by state supreme court judges in the process. Justices Thomas, Gorsuch, and Samuel Alito all signaled support for the theory prior to the Moore case, in which a decision is expected soon.
SENATOR DICK DURBIN (D-Il.) began his quest for Supreme Court ethics reform eleven years ago, when he first wrote a letter to Chief Justice John Roberts on behalf of the Senate Judiciary Committee, asking for “greater transparency about the internal resolutions the Court has adopted to address ethical issues” and suggesting that it “adopt a resolution . . . stating that Members of the Court abide by [a] Code of Conduct.” Durbin invited Roberts to testify before the committee at a May 2 hearing this year, as well, but the chief justice declined, asserting that although other chief justices have appeared before Congress twice before, those “hearings involved routine matters of judicial administration.” This matter, one supposes, is far more important, prompting Roberts’s refusal to cooperate in the work of a coordinate branch, in his words, “in light of separation of powers concerns and the importance of preserving judicial independence.”
Roberts is concerned about judicial independence from Congress, that is. Never mind independence from powerful dark-money interests, which is precisely what the Senate Judiciary Committee inquiry is all about.
Bopp’s letter on behalf of Harlan Crow fastens on the elusive separation of powers, as well, essentially arguing that Congress is constitutionally barred from enacting ethical rules and standards for the Supreme Court, even though it has done so without incident for the lower federal courts. The argument is that the Supreme Court is created by the Constitution expressly, whereas the Constitution gives Congress the power to create the lower federal judiciary, which it did with the first Federal Judiciary Act of 1789, so Congress can only regulate the courts that it actually creates in the first place.
There are many gaping flaws in this position, but let’s focus on three big ones. The first is that the Constitution is silent about a number of things when it comes to the Supreme Court, including its very configuration, but that hasn’t stopped Congress from legislatively putting meat on those bones. In the 1789 act, it established that the chief justice would serve on the Supreme Court (the position of chief justice is mentioned in the Constitution, but not explicitly linked to the Supreme Court) along with five associate justices, and made clear that four votes are needed for a quorum. In 1801, it reduced the overall size to five justices, and then later notched the Court back up to six. At its largest, the Court had ten justices during the Civil War, a number that Congress reduced to seven in 1866, which was then expanded to nine in 1869. These days, 28 U.S.C. § 1 directs that there be one chief justice and eight associates, and that six are needed for a quorum enabling it to meet. In the early years, moreover, justices were required to “ride circuit,” spending part of their time traveling around to hear cases as lower court judges across the country. Congress still requires that justices “shall from time to time be allotted as circuit justices among the circuits.” That law is contained in 28 U.S.C. § 42. Its constitutionality has never been seriously questioned.
Bopp’s contention that somehow the Supreme Court is nonetheless so constitutionally sacrosanct that, unlike the lower federal courts, it cannot be impacted by federal legislation is thus historically wrong. It also has no support whatsoever in prior case law from any federal court in the country, including the Supreme Court (if such precedent existed, Bopp no doubt would have cited it; the letter is instead riddled with citations that are factually incomparable and legally immaterial).
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Second, the Supreme Court is already bound by 28 U.S.C. § 455, which goes unmentioned in the letter, but expressly states that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” (emphasis added). Thomas arguably violated this law in connection with the 2020 election cases. The problem with § 455 is that there is no enforcement mechanism—Thomas got away with it, that is, and will undoubtedly do it again unless there’s a meaningful consequence (public scrutiny isn’t going to do the trick, obviously). Still, the fact remains that Congress can and has validly regulated the Supreme Court to foster ethical neutrality.
Third, the 1978 Ethics in Government Act also already requires judges and justices to complete yearly financial disclosures. So again, Congress has comfortably regulated the Supreme Court with the Constitution’s backing. In light of all of these existing laws, the Bopp letter’s claim that Congress does not have a valid legislative objective in seeking to possibly expand some version of the lower federal judges’ code of ethics to the Supreme Court is exceedingly weak.
THE BOPP LETTER adds that investigating Thomas himself is overreaching, because according to the Supreme Court, under a 1957 case called Watkins v. United States, “there is no congressional power to expose for the sake of exposure”—the suggestion being that this is all about bullying poor Justice Thomas.
But let’s take a closer look at the case Bopp cited. Watkins involved John Thomas Watkins, a labor union official with four children and an eighth-grade education, who was convicted of criminal contempt of Congress for refusing to name people he knew to be members of the Communist Party. Testifying before the House of Representatives Committee on Un-American Activities in 1954, Watkins said:
I am not going to plead the Fifth Amendment, but I refuse to answer certain questions that I believe are outside the proper scope of your committee’s activities. I will answer any questions which this committee puts to me about myself. I will also answer questions about those persons whom I knew to be members of the Communist Party and whom I believe still are. I will not, however, answer any questions with respect to others with whom I associated in the past. I do not believe that any law in this country requires me to testify about persons who may in the past have been Communist Party members or otherwise engaged in Communist Party activity but who to my best knowledge and belief have long since removed themselves from the Communist movement. . . .
I may be wrong, and the committee may have this power, but until and unless a court of law so holds and directs me to answer, I most firmly refuse to discuss the political activities of my past associates.
In deciding to reply unresponsively to the “friendly” inquiry from Congress (no subpoena has issued) about his gifts to Justice Thomas, Harlan Crow’s actions are a far cry from those of John Watkins. Watkins made a principled stand against abuses of the investigative process. Crow is rebuffing a legitimate inquiry into an ethics scandal that directly involves himself. Given the sobering separation of powers concerns at stake, Crow’s contempt of the U.S. Congress is truly contemptible.