Letter from an American - June 21, 2023

Supreme Court Associate Justice Samuel Alito testifying on Capitol Hill on March 7, 2019. Chip Somodevilla/Getty Images

Just before midnight yesterday, ProPublica reporters Justin Elliott, Joshua Kaplan, and Alex Mierjeski published a story reporting that Supreme Court Justice Samuel Alito in 2008 flew on a private jet to a luxury fishing vacation in Alaska thanks to the hospitality of hedge fund billionaire Paul Singer, whose business was based on hard-hitting litigation. Since that trip, Singer has had that litigation before the Supreme Court at least ten times. Alito neither disclosed the gift of the flight on the private jet nor recused himself from ruling on those cases.

In the last decade, according to the authors, Singer has donated more than $80 million to Republican political groups. While in Alaska, Alito stayed as a guest at the lodge of another wealthy Republican donor, who had, in the past, entertained former Supreme Court Justice Antonin Scalia. Lodging there cost $1000 a night.

This revelation adds to the many recently-revealed ties between the court’s right-wing justices and wealthy donors. In April, ProPublica, which is a nonprofit newsroom that focuses on abuses of power, began a series revealing that Justice Clarence Thomas had accepted lavish gifts from Texas billionaire and Republican megadonor Harlan Crow, as well as private school tuition for a relative and real estate deals. Thomas did not disclose those gifts.

Then it turned out that the wife of Chief Justice John Roberts made more than $10 million in commissions over 8 years as she matched top lawyers with top law firms, including some that brought cases before the court. Roberts misleadingly disclosed the money as “salary” rather than commissions. Then news broke that nine days after Justice Neil Gorsuch was confirmed to the court, a property in which he held an interest sold after two years on the market. The buyer was the chief executive of Greenberg Traurig, a law firm that routinely practices before the court. Gorsuch did not disclose the buyer’s identity.

Last night’s story got weirder, though, because Alito waded into it to attack ProPublica for their reporting. The reporters had reached out to the justice last week to get his side of the story. Yesterday, Alito’s office told the authors he had no comment and then several hours later—before the ProPublica story dropped—Alito published in the Wall Street Journal an op-ed “prebuttal” of what was to come. It was titled: “ProPublica Misleads Its Readers.”

Alito didn’t deny that he had accepted the gifts, but claimed that he didn’t need to disclose the valuable flight because it was a “facility” and that the vacation did not involve $1,000 bottles of wine (remember that no one had yet read the ProPublica story, which quoted one of the lodge’s fishing guides as saying that a member of Alito’s party said the wine they were drinking cost $1,000 a bottle). He also said he did not know Singer was associated with the cases before the court.

Today Leonard Leo, the person who organized the 2008 fishing trip, also jumped in. In 2008, Leo was the head of the Federalist Society, which came together in 1982 to roll back the business regulations and the civil rights legislation of the post–World War II era by remaking the courts with judges who stood against what they called “judicial activism.” (Leo is now in charge of Marble Freedom Trust, a nonprofit organized in May 2020 with a $1.6 billion donation from donor Barre Seid to push right-wing politics at every level.)

Leo released a statement supporting Alito and warning: “We all should wonder whether this recent rash of ProPublica stories questioning the integrity of only conservative Supreme Court Justices is bait for reeling in more dark money from woke billionaires who want to damage this Supreme Court and remake it into one that will disregard the law by rubber stamping their disordered and highly unpopular cultural preferences.” (Justice Elena Kagan, one of the justices Leo suggests is being unfairly given a pass by ProPublica, reportedly declined to accept a basket of bagels and lox from her high-school classmates out of concern about the ethics of accepting gifts.)

Josh Marshall of Talking Points Memo observed that Leo seems to have used his extensive network to set up relationships between judges and donors in a reinforcing ecosystem.

This is, of course, precisely why there is pressure on the Supreme Court to adopt ethics reform. In April, Senators Angus King (I-ME) and Lisa Murkowski (R-AK) introduced the Supreme Court Code of Conduct Act, which would simply ask the court to develop its own code of conduct and oversight, a system that, unlike every other state and federal court, it does not currently have. That measure remains in committee.

But the day had just begun. John Durham, appointed as special counsel by Trump attorney general William Barr on October 19, 2020, to investigate the behavior of federal investigators who examined the ties between the 2016 Trump campaign and Russian operatives, testified for over six hours today before the House Judiciary Committee. While Trump and his loyalists repeatedly predicted Durham would find damning evidence against the investigators, in fact his 306-page report, released on May 15 after a four-year, $6.5 million investigation, simply said the FBI should have launched a preliminary investigation rather than a full investigation (a 2019 report by the Justice Department’s inspector general concluded the opposite).

There was little new information presented in the hearing, although Durham did answer a question from Representative Zoe Lofgren (D-CA) about the report that when Durham and Barr had asked Italian officials for evidence in favor of Trump, they had instead passed on information that implicated Trump in financial crimes. Durham responded, “The question’s outside the scope of what I think I’m authorized to talk about—it’s not part of the report,” but added: “I can tell you this. That investigative steps were taken, grand jury subpoenas were issued and it came to nothing.”

The hearing served mostly to keep the Russia investigation in front of the public, which appears to be important to the former president and his allies as they continue to attack the FBI and the Justice Department. But Democrats on the committee pressed Durham on the facts of the Russia investigation itself, and he, seemingly somewhat reluctantly, agreed under oath in response to questions by Representative Adam Schiff (D-CA) that the facts of the Mueller report and the Senate Intelligence Committee report were correct: Russia interfered in the 2016 election for the benefit of Trump, Trump’s campaign welcomed the help and shared information and secret meetings with Russian operatives, and the FBI was justified in investigating that interference.

Also significant in the hearing was the prominence of Schiff, who was the House manager for Trump’s first impeachment trial. That effort earned him Trump’s fury, and Trump loyalists today demanded a vote on the motion by Representative Anna Paulina Luna (R-FL) to censure Schiff.

Notwithstanding Durham’s sworn testimony, House Resolution 521 began: “Whereas the allegation that President Donald Trump colluded with Russia to interfere in the 2016 Presidential election has been revealed as false by numerous in-depth investigations, including the recent report by Special Counsel John Durham….”

The resolution was a red-meat pro-Trump document, insisting that the Trump campaign did not work with the Russians, that Schiff “misled the public” over Trump’s call asking for a “favor” from Ukraine president Volodymyr Zelensky, and that, as then-chair of the Intelligence Committee, Adam Schiff must be censured “for misleading the American public and for conduct unbecoming of an elected Member of the House of Representatives.” It also requires the Ethics Committee to “conduct an investigation into…Schiff’s falsehoods, misrepresentations, and abuses of sensitive information.”

On social media, Trump had called for primary challengers against any Republican who voted against the censure. The Republicans fell into line. During the debate, former House speaker Nancy Pelosi (D-CA) said: “The other side has turned this chamber...into a puppet show. A puppet show, and you know what? The puppeteer, Donald Trump, is shining a light on the strings. You look miserable. Miserable.” The final vote was 213 to 209, with 6 representatives voting present. When the motion passed, the House Democrats erupted into chants of “Shame” and “Disgrace.”

Owen Tucker-Smith of the Los Angeles Times noted that in the past 40 years, the House has censured just five people: Paul Gosar (R-AZ) in 2021 for tweeting a video showing a character with his face killing Representative Alexandria Ocasio-Cortez (D-NY) and attacking President Biden, Charles Rangel (D-NY) in 2010 for finance violations, Gerry Studds (D-MA) and Dan Crane (R-IL) in 1983 for sexual misconduct with House pages, and now Schiff.

Earlier today, Schiff had his own take on his censure: “To my Republican colleagues who introduced this resolution, I thank you,’ he said. “You honor me with your enmity. You flatter me with this falsehood. You, who are the authors of a big lie about the last election, must condemn the truth-tellers and I stand proudly before you. Your words tell me that I have been effective in the defense of our democracy and I am grateful.”

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Notes:

https://www.propublica.org/article/samuel-alito-luxury-fishing-trip-paul-singer-scotus-supreme-court

https://www.cnn.com/2022/08/22/politics/dark-money-donation-conservative-group-invs/index.html

https://www.nytimes.com/2022/08/22/us/politics/republican-dark-money.html

https://www.axios.com/2020/01/07/leonard-leo-crc-advisors-federalist-society

https://www.propublica.org/article/clarence-thomas-harlan-crow-investigation-origins

https://www.politico.com/news/2023/04/25/neil-gorsuch-colorado-property-sale-00093579

https://www.forbes.com/sites/nicholasreimann/2023/04/28/chief-justice-john-roberts-wife-made-over-10-million-as-legal-consultant-report-says/

https://www.wsj.com/articles/propublica-misleads-its-readers-alito-gifts-disclosure-alaska-singer-23b51eda

https://talkingpointsmemo.com/edblog/leonard-leos-scotus-fedsoc-sponsor-family-program

https://www.documentcloud.org/documents/23854155-statement-from-leonard-leo-june-2023