Harlan Crow, (AP Photo/LM Otero, File), Justice Clarence Thomas (Photo by Erin Schaff/Pool/Getty Images), Leonard Leo and Justice Neil Gorsuch embrace at a 2017 Federalist Society convention (AP Photo/Sait Serkan Gurbuz)
Senate Judiciary Democrats on Thursday, led by Chairman Dick Durbin, approved subpoenas of Justice Clarence Thomas’ billionaire friend Harlan Crow and conservative judicial activist Leonard Leo, the former Federalist Society executive vice president and current co-chairman, as part of the committee’s ongoing U.S. Supreme Court ethics probe.
The Supreme Court recently responded to calls for an ethics code by announcing that the nine justices had signed a promulgated “Code of Conduct,” a document that did not outline an enforcement mechanism for violations.
Sen. Durbin touched on the lack of an enforcement mechanism Thursday when announcing the subpoenas of Crow and Leo.
“We just authorized subpoenas for Harlan Crow & Leonard Leo relating to our SCOTUS ethics investigation,” Durbin posted on X. “@JudiciaryDems’ goal all along has been to ensure, like all other federal judges, SCOTUS justices are bound by an enforceable code of conduct. Today’s vote furthers that goal.”
Senate Judiciary Democrats have for some time threatened to impose, through legislation, an enforceable code of conduct on the Supreme Court if the high court didn’t itself do so.
Before the subpoena vote Thursday, Durbin reportedly said Leo and Crow are “central players in this ethics crisis.”
“I do not seek this authorization lightly and do not ask for it often, but to protect Congress’ authority and advance the committee’s efforts to implement an enforceable code of conduct for the Supreme Court, it is necessary,” Durbin said, according to Axios.
Republican lawmakers on the committee reportedly walked out during the vote.
Harlan Crow, a Texas billionaire, was the subject in recent months of several ProPublica reports revealing that Thomas left absent from annual financial disclosure reports Crow-sponsored luxury yacht trips, a real estate transaction involving the home where the justice’s mother lived, and paid private school tuition for Thomas’ grandnephew, whom the justice raised “as a son.”
In May, Michael D. Bopp, an attorney for Crow, resisted committee scrutiny of his client’s friendship with Thomas, asserting a congressional attempt to legislate ethical rules and standards at the Supreme Court would constitute an illegal encroachment on the separation of powers.
In a follow-up letter to the committee in June, Bopp doubled down on the position that the Senate Judiciary Committee “lacks authority to conduct its investigation of Mr. Crow and Justice Thomas.”
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“To reiterate, Congress does not have the power to impose ethics standards on the Supreme Court. It therefore cannot mount an investigation for the purpose of helping craft such standards,” Bopp said.
After the initial ProPublica reporting on the “superyacht” trips, Justice Thomas said that he and his wife Ginni Thomas have been friends with Harlan and Kathy Crow for “over twenty-five years.”
“As friends do, we have joined them on a number of family trips during the more than quarter century we have known them. Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas said. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”
Leonard Leo, often styled as a kingmaker in “big money politics” and the nominations of conservative jurists to lifetime federal judgeships, also counts himself as a friend of Justice Thomas.
From the Washington Post:
In 1990, Leo became a clerk for a U.S. Court of Appeals judge in Washington, D.C., where he met Clarence Thomas, then an appellate judge. The two became close friends.
After his clerkship, Leo joined the Federalist Society as one of its first paid employees. But he delayed the start date to help Thomas through his contentious confirmation process for the Supreme Court.
The Democratic lawmakers on the Senate Judiciary Committee had already made clear their interest in subpoenaing Leo to investigate his role in luxury travel for conservative justices, for instance the 2008 Alaskan fishing trip Justice Samuel Alito enjoyed — a trip that ProPublica reported was arranged by Leo.
Like Crow’s attorney, Leo’s lawyer David Rivkin has said that Senate Judiciary Committee’s goal to impose and ethics code on the Supreme Court “exceeds the limits placed by the Constitution on the Committee’s investigative authority” and “offends basic separation of powers principles.”
“Congress cannot conduct an investigation in connection with legislation that it cannot constitutionally enact,” Rivkin said in July, perhaps signaling that a subpoena fight will spill into the courts over the issue.
At the end of October, Leo reportedly called the Senate Judiciary probe “disgusting liberal McCarthyism that seeks to destroy the Supreme Court simply because it follows the Constitution rather than their political agenda.”
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