09.11.20

Senators Request Information on Outside Groups Involved in Trump SCOTUS List

To avoid serious conflicts of interest, federal law requires disclosure of outside interests advising the President; What role have anonymously funded right-wing groups played in building Trump’s Court shortlist?

Washington, DC – Senators Sheldon Whitehouse (D-RI), Dick Durbin (D-IL), Sherrod Brown (D-OH), Richard Blumenthal (D-CT), and Mazie Hirono (D-HI) are asking White House Counsel Pat Cipollone for information on whether the Trump White House followed federal ethics and record retention rules in consulting the dark money groups involved in Trump’s Supreme Court shortlist. Reporting indicates a “large team of extraordinarily talented lawyers” worked on a “big vetting project” to recommend to Trump the list of candidates released on Wednesday, including a right-wing dark money group, the Judicial Crisis Network (JCN). To guard against conflicts of interest, federal law requires those who serve in the White House or who formally advise the president to disclose their financial interests. The senators request details of who participated in the selection of potential nominees for the most powerful judicial posts in the country.

“Federal law requires those who serve in the Administration or who formally advise the President to disclose their financial interests so that conflicts of interest may be addressed. It also limits the use of voluntary services, requires federal records to be properly maintained, and restricts access to certain records by members of the public,” the senators write. “While the President is entitled to receive advice from members of the public, these laws provide for basic transparency and accountability in government decision-making, principles that are of utmost importance when a life-tenured seat on the nation’s highest court is at stake.”

It has been widely reported that President Trump has turned over elements of his judicial selection to right-wing outside groups. A previous Trump White House Counsel quipped that the White House had “in-sourced” the conservative Federalist Society to guide judicial selection. Reporting also shows that a broad array of anonymously funded groups have run an intricate influence campaign to secure nomination and confirmation of Trump judges – even when the nominees faced grave concerns about their fitness for the federal bench.

The Federalist Society’s Leonard Leo has helped drive the unprecedented rise in anonymous funding that now pervades the selection and nomination processes for federal judicial picks. Leo’s advocacy work appears to have coincided with his service advising the Trump administration’s judicial selection and nominations process.

Now that Leo has moved on to a new project to suppress voter turnout in Republicans’ favor in the 2020 election, one of Leo’s protégés from JCN has stepped in. JCN has spent heavily on political-style campaigns to support the confirmations of Justices Neil Gorsuch and Brett Kavanaugh, supported by multi-million dollar contributions from anonymous sources.

In March, the senators wrote to the Trump administration, Leo, and the Federalist Society requesting information on the outside groups’ involvement in judicial selection. The senators have not received a response.

Full text of the senators’ letter is below. A PDF copy is available here.

Pat A. Cipollone
White House Counsel
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500

Dear Mr. Cipollone,

We write to request information on the process President Trump used to develop a list of potential nominees to the United States Supreme Court. Recent reporting indicated that a “large team of extraordinarily talented lawyers”[1] worked on a “big vetting project” to recommend to him a list of possible nominees.[2] President Trump announced his list on September 9, 2020.

We have previously raised concerns about whether those who have advised the President on his selection of judicial nominees have complied with applicable records retention, financial disclosure, and conflict-of-interest requirements.[3] It is well documented that Leonard Leo took two leaves of absence from his position at the Federalist Society to advise the Trump administration on judicial nominees.[4] The Washington Post reported last year that Mr. Leo was also at the center of a $250 million dark money operation designed to influence the federal judiciary.[5] We still do not know whether Mr. Leo complied with financial disclosure requirements intended to identify conflicts of interest by government advisors and other transparency laws.

Reporting indicates that Mr. Leo has moved on to different endeavors that include channeling millions of dollars into efforts to make it harder for Americans to vote during an unprecedented public health crisis.[6] Now his protégé, Carrie Severino, president of the Judicial Crisis Network (JCN), is reported to have been “involved in the … list process.”[7] JCN and Ms. Severino bring their own potential conflicts of interest to this role. JCN has spent millions of dollars on campaigns to support the confirmations of Justices Neil Gorsuch and Brett Kavanaugh, supported by multi-million dollar contributions from anonymous sources.

  • One anonymous donor gave JCN $17.9 million in fiscal year 2016 for political campaigns against Merrick Garland and in favor of Neil Gorsuch;[8]
  • In fiscal year 2017, a $17.1 million donation came in from an anonymous donor—perhaps the same one—for the political campaign to prop up Brett Kavanaugh;[9]
  • And in fiscal year 2018, which also covered the period of the Kavanaugh confirmation, JCN received a $15.9 million donation from a single donor, and five other donations from anonymous sources over a million dollars each.[10]

Because JCN is incorporated as a 501(c)(4) organization, it is not required to disclose its donors, which heightens the risk of conflicts of interest. JCN is, however, required to disclose grants it makes to outside groups, and a review of these disclosures shows JCN has contributed millions of dollars over the last decade to groups that are actively in politics and with business before the courts. For example, JCN has given:

  • At least $9.9 million to the Republican Attorneys General Association.[11]
  • At least $4.7 million to the Tea Party Patriots.[12] 
  • At least $2.2 million to the National Rifle Association.[13]
  • At least $1.9 million to the Rule of Law Defense Fund.[14]

Severino is also president of the Judicial Education Project (JEP), from which she receives compensation of at least $170,000 a year from sources that are not disclosed.[15] JEP has participated as an amicus curiae or as counsel for an amicus curiae in at least 14 cases before the Supreme Court on issues ranging from abortion to the Affordable Care Act to affirmative action.

It is a reasonable assumption that any person selected by Ms. Severino and her team as a potential nominee to the Supreme Court would be acceptable to those who donate millions of dollars to her work with JCN and JEP. Ms. Severino surely knows who these people are and what they want. The American people should know, too.

Federal law requires those who serve in the Administration or who formally advise the President to disclose their financial interests so that conflicts of interest may be addressed. It also limits the use of voluntary services, requires federal records to be properly maintained, and restricts access to certain records by members of the public. While the President is entitled to receive advice from members of the public, these laws provide for basic transparency and accountability in government decision-making, principles that are of utmost importance when a life-tenured seat on the nation’s highest court is at stake.

So we may have a better understanding of what interests are influencing the President’s selection of potential Supreme Court nominees, we request you answer the questions in the attached Appendix not later than September 24, 2020.