September 19, 2023

The Scheme 23: Let’s Say

Mr. President, I will call this my ‘‘let’s say’’ speech. Lawyers know what a hypothetical is. We will talk about some hypotheticals related to the scheme to capture the Court.

Let’s say, Mr. President, that you are a creepy billionaire and it is your plan to capture and control the Supreme Court, to take it over just like 19thcentury robber barons would have taken over and captured the railroad commission that set the rates for their own railroad.

Let’s say you sent millions of dollars—secret dollars—to the Federalist Society for it to funnel money to its employee and your operative, Leonard Leo.

Let’s say that Leonard Leo got his cred with you and your rightwing billionaire pals when he helped you kill the nomination to the Supreme Court of President George W. Bush’s friend and White House Counsel Harriet Miers— a political hit job from the far right against a Republican President’s nominee, which produced none other than Sam Alito.

Let’s say you also sent millions of dollars to Leonard Leo’s Judicial Crisis Network, a fictitious-named front group for another front group operating out of the same hallway, on the same floor, in the same building as the Federalist Society.

Let’s say you sent the Judicial Crisis Network secret millions of dollars— checks as big as $15 million, checks as big as $17 million—to run ads against Merrick Garland to help MITCH MCCONNELL block his confirmation by the Senate. Let’s say you also sent millions of dollars, secret dollars, identitylaundered through front groups, like 501(c)(4)s and Donors Trust, which exist for the purpose of scrubbing off your identity from your money, and through the 501(c)(4)s and through Donors Trust to Republican political groups, like super PACs controlled by MITCH MCCONNELL.

Let’s say, with those secret millions funneled into those super PACs, you acquired loyalty and obedience from Republican political figures. Let’s say that worked.

Let’s say that for your millions of dollars to the Federalist Society, the Federalist Society allowed you to use its name on a list of Supreme Court nominees that you and your rightwing billionaire pals and Leonard Leo cooked up—a list that the Federalist Society never considered or approved, never an agenda item, never a vote, but a list from some back room of the Federalist Society, pulled together by Leo and the billionaires that Candidate Trump promised to follow.

Let’s say that for that Trump promise to let you pick Supreme Court Justices, you agreed to hold your nose and not object to Trump’s candidacy. Let’s say that Trump kept that promise and nominated your chosen ones to the Supreme Court, and let’s say that when Trump kept that promise and nominated your chosen ones, you sent millions more to the Judicial Crisis Network and to MITCH MCCONNELL’s political operation, not just to stop Merrick Garland but to push the confirmation of your chosen ones: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Let’s say that you funded dozens of front groups to bring cases and to file briefs at the Supreme Court at your orchestrated direction—10, 11, 12, and in one case, it is 50 at a time—like piano keys on the piano, and you sent that message through those front groups in those briefs to remind your chosen ones what it is exactly that you wanted them to do in those cases.

Let’s say that the chosen ones produced an amazing, statistically stunning record of doing, in the opinions they produced, just what your front groups asked.

Let’s say you and your fellow billionaires played your front groups like piano keys and your chosen Justices harmonized perfectly with their direction.

Let’s say that to keep your chosen ones loyal and happy and entertained, you secretly paid for their personal lives. You paid for family tuitions. You bought family houses and let family members live rent-free. You paid for ‘‘Lifestyles of the Rich and Famous?- level vacations, including free travel to resorts on private jets, travel on private yachts. You gave them expensive gifts, and you directed money to their spouses, and, of course, you hung out with them.

Let’s say that last part—keeping them loyal and happy and entertained with all those gifts—was illegal. Illegal.

Let’s say that your loyalty gifts program required the chosen ones to file false Federal disclosure forms and perhaps even false tax returns. Let’s say that your loyalty gifts program might put you in trouble with the tax man for claiming false business expenses. How could that be?

Let’s say that the chosen ones were calling this bonanza of freebies ‘‘personal hospitality.’’ ‘‘Personal hospitality’’—a term of art allowing nondisclosure under the disclosure laws.

Let’s say that they were all calling it ‘‘personal hospitality,’’ but you were calling the bonanza ‘‘deductible business expenses of corporate yachts and jets.’’ Then it wouldn’t all add up.

That is a lot of ‘‘let’s say,’’ I know, but that is about what we are looking at with the Supreme Court right now.

We know it is not one rightwing billionaire but a little bunch of them. We don’t know all the freebies yet. Maybe we only know 10 percent of the freebies. We know that there has been no meaningful investigation of this, so there is lots left to learn. That is our job in Congress, to investigate malfeasance in government and expose abuse so the citizens can see what has been going on and laws can be changed to better protect against that kind of abuse.

So let’s say Congress starts doing its job and starts asking nosy questions. What is a creepy billionaire to do? That is easy. You lawyer up. You refuse to cooperate. You are a billionaire, remember, so you can pay lawyers a thousand dollars an hour until the cows come home and not even notice it. A thousand hours of thousand-dollar lawyering wouldn’t cost you a thousandth of your wealth. You live above the law, sheltered by your billions. You actually direct the law through your chosen ones on the Supreme Court. The impertinence of being investigated is insufferable, so this is what you send.

Here are two actual lawyer letters. One was sent by the lawyer for the billionaire Harlan Crow. The other was sent by the lawyer for the billionaire’s operative and his painting mate, Leonard Leo.

When I say ‘‘painting mate,’’ I mean this painting that Harlan Crow, the billionaire, has of his time with Clarence Thomas, one of the chosen ones, and Leonard Leo, the operative. Couldn’t be more cozy.

So you send these letters. Leo, by the way, has himself joined your billionaire boys’ club. He did so when one of your billionaires, Barre Seid, set him up with his own $1.6 billion slush fund, held through a Utah 501(c)(4) front group confected for that transaction.

Let’s walk through what these letters say because the arguments are so preposterous, it is hard to imagine they could be made in good faith. As you can imagine, when letters come from lawyers for billionaires in the billionaire Court-packing boys’ club, the letters are pretty alike.

The first one for Crow says: Congress does not have the constitutional power to impose ethics rules and standards on the Supreme Court.

The second one for Mr. Leo says: Your inquiry exceeds the limits placed by the Constitution on the Committee’s investigative authority. Then there is a third one for another billionaire where they just did one paragraph. Basically, it just says: Yeah, what Leonard Leo’s lawyer says. This inquiry exceeds the limits placed on the legislature by the Constitution. We refer you to the relevant portions of the letter . . . directed to you on behalf of Mr. Leo.

I feel kind of bad for these lawyers because I don’t think you can bill very much for one paragraph, whereas these guys can bill quite a lot. Anyway, poor fellas.

So let’s look at these other letters I ask unanimous consent that the first page of the letter of lawyer Bopp for billionaire Crow and the first page of the letter of lawyer Rivkin for billionaire operative Leo—as exhibits at the end of my remarks—with the short, one-paragraph letter, the tagalong letter from attorney Clark, be printed in the RECORD.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. WHITEHOUSE. Lawyers Bopp and Rivkin both tell me that investigating their clients’ activities is unconstitutional under the separation of powers. We can’t legislate about Supreme Court ethics, so we can’t investigate Supreme Court ethics.

First, remember that alongside separation of powers is its twin, checks and balances, which requires branches, like the legislative branch, to check and balance the behavior of other branches, like, in this case, the judicial branch.

That is what we are doing here— checks and balances. Let’s dive down into the specifics a little bit more. There are primarily three topics. One, did the billionaire or the operative take improper advantage of the Tax Code in their dealings with the Justices? That is what we are looking into.

The Finance Committee has its own investigation, along with the Judiciary Committee, to focus on the tax side of this.  Well, I have to say it is hard to see how abuse of the Tax Code by a private citizen in his tax filings could raise any separation of powers concern. That is between the tax filer, the government, and the law. The Justices are simply not a party to that.

Even if we were looking at the Justices’ own tax filings, were it to come to that, they would be investigated in their roles not as Justices but as taxpayers. Being a Justice doesn’t allow you to violate the tax laws or immunize you from tax investigation or permit you to make actionable false statements in your tax returns any more than being a Justice would allow you to commit any other offense.

So there is tax abuse, issue 1— no visible separation-of-powers angle to it.

Issue 2, did the Justices receiving gifts and emoluments from the billionaire or the operative properly report them, or did the judicial gifts reporting system fail here? The billionaires’ lawyers say that is not our business.

Well, that is Congress’s business for two pretty obvious reasons. First, the reporting requirements are a law passed by Congress whose implementation we can absolutely oversee like any other law passed by Congress, and this law includes Justices. Second, the implementing body of that law is the Judicial Conference, a body created by Congress whose activities we can absolutely oversee—we created it. The notion that Congress cannot investigate to see if an Agency it created is properly implementing laws Congress passed is ludicrous on its face.

Peripherally, it is worth noting that the Supreme Court has never objected on constitutional grounds to that body or to those laws. The Chief Justice actually chairs the Judicial Conference without objection to its congressional nature.

When questions about Justice Thomas’s first round of free yacht and jet travel from Harlan Crow were raised a decade ago, those concerns went, under the law, to the Financial Disclosure Committee of the Judicial Conference for review, without objection to the power of review by Justice Thomas.

And when Thomas’s recent round of billionaire-funded free yacht and jet travel—Crow-Thomas 2.0, you might call it—raised questions anew, again, those questions went to the Financial Disclosure Committee of the Judicial Conference for review, where those questions pend now, again, without objection. Nobody said: The Judicial Conference is unconstitutional. The reporting laws are unconstitutional. You can’t look at this. Congress could never pass those laws. Congress could not create judicial conflict. Nobody said that.

Additionally, when Justice Scalia’s trick came to light of obtaining dozens of free hunting vacations and not disclosing them because it was supposedly a ‘‘personal invitation,’’ which supposedly made it ‘‘personal hospitality’’ that didn’t have to be disclosed, the question of that trip’s propriety went to the Financial Disclosure Committee of the Judicial Conference for review.

The conference shut that trick down firmly, and Justice Thomas conceded he would abide by the Judicial Conference’s determination—again, with no assertion that there was anything unconstitutional about it. So the separation-of-powers argument, in addition to making no sense, founders on the decades-long acceptance in real life by Supreme Court Justices of our congressional role through these laws and through the Judicial Conference.

Here is another argument they make. This is an interesting one. We have been too mean. We have been too mean looking into these facts. They tart that argument up in constitutional terminology, but that is it in a nutshell.

I have used the analogy, describing Leonard Leo’s role, in the billionaires’ Court-capture scheme, of a spider in a web. They think that is too mean.

The problem with that ‘‘too mean’’ argument is that it assumes the result. If, in fact, there is a secret operation to capture and control the Supreme Court for the benefit of special interests, and if, in fact, Leo is its key operative, it is not actually all that mean to make an analogy to a spider and a web. It is actually pretty mild and quite descriptive.

The accusation that we are doing this just to be mean and it is unfair to ask questions presumes that there is nothing secret and sordid and wrong that would be revealed by our investigation. It is a little like saying the police can’t investigate me because it would be unconstitutionally unfair because I am so innocent.

Well, that is what the police investigation would reveal, just as this congressional investigation, unless successfully obstructed by the billionaires, might very well reveal a dark episode of secret corruption of our highest Court—perhaps, even the most covert, most persistent effort at judicial corruption in our country’s history.

To be continued. I will be back with more of this story.