December 19, 2023

The Scheme 26: The Judiciary Committee Votes for Subpoenas

Mr. President, I am here today for the 26th time to detail the special interest billionaire-funded scheme that has overrun the U.S. Supreme Court. This evening, I would like to discuss some things about Republican Judiciary Committee members’ performance in the Senate Judiciary Committee recently as we voted on authorizing subpoenas for billionaire Harlan Crow, some of his holding companies, and the court-fixer, Leonard Leo.

At the end of last month, we voted, through the authorization for Chairman DURBIN, to issue subpoenas, and it was greeted with a barrage of talk about a whole variety of things. But one was how Democrats were destroying the Judiciary Committee. We were absolutely totally going to destroy the Judiciary Committee. It was on us that the Judiciary Committee was going to be destroyed. Well, all the talk about destroying the Senate Judiciary Committee came, rather, in the nature of a threat. It was actually more like, if we did something that we are perfectly entitled to do to pursue subpoenas after being persistently obstructed, then Republicans would destroy the committee, would undo any good will or any bipartisanship or any collegial effort.

Somehow that Republican threat to destroy the committee morphed into Democrats destroying the committee. But that doesn’t make any sense. If you think of a kidnapper shooting his hostage and then blaming the family for the murder of the hostage because the family hadn’t yielded to the kidnapper’s demands, that is kind of backward logic.

Also backward logic is the argument that the subpoenas were an effort to destroy not the committee but the Supreme Court. The subpoenas would destroy or damage the Supreme Court. OK. Let’s think about that for a minute. There is only one possible way that it could be true, logically, that these subpoenas could do damage to the Supreme Court—only one—and that is if the information the subpoenas would disclose is so damaging that it would damage or destroy the Court. Subpoenas that turned up nothing would be no harm, no foul. If there is nothing evil to see in the information the subpoenas are pursuing, there is no harm. The necessary logical predicate of the destroy-the-Court argument made by our colleagues is that subpoenas would reveal that something truly horrible happened at the Court that now needs to be covered up—covered up.

But that is not how ‘‘appearance of impropriety’’ works. Justices of the Supreme Court are supposed to avoid doing things that might create even the appearance of impropriety. The appearance-of-impropriety issue is not that you do impropriety and then go out and cover up its appearance. We also heard a lot that day about the problem of subpoenaing ‘‘private citizens,’’ as if that were something unusual. If that is a problem, it was a very new problem because just days before, the committee had subpoenaed private citizens in the tech sector on a bipartisan basis without anyone’s objection.

As always, our Republican friends persisted in the argument that this committee has no business looking at Supreme Court gift disclosures. That argument was, is, and will always be a phony. The Judiciary Committee has every right to oversee how an Agency that Congress created—the Judicial Conference—is implementing a law that Congress passed, the judicial disclosure law. It is within the jurisdiction of the committee; it is a congressionally established body; and it is a statute passed by Congress. If Congress can’t oversee how Agencies it creates oversee laws it passes, there is no oversight left. Obviously, understanding what gifts went undisclosed is essential to that inquiry.

We then heard that you can’t have subpoenas because a related bill is out of the committee. But Congress has every right to oversight and subpoenas at any stage in legislation—and even at no stage in legislation. Because the bill in question has not passed here in the Senate—it has come to the Senate floor, but it has not passed in the Senate—and because the Republicans not only stonewalled our investigation but threatened very plainly a partisan blockade of the bill here on the floor— ‘‘not a single Republican vote’’ was, I think, what they threatened—that makes it all the more obvious why continuing to build the factual case for reform is appropriate. There is precisely zero basis for the theory that a Senate committee can’t look into a subject of legislation once some related legislation is out of committee. Preparing for a successful floor vote on that bill is only one obvious reason why that theory is painfully wrong.

If you look at all of that noise and fuss that was put up, it is hard not to deduce that maybe something else is going on here.

Here is my theory of the case, as I have said in previous speeches: Very powerful rightwing billionaires spent years and hundreds of millions of dollars on a scheme to influence—and even control—the Supreme Court. Those very powerful rightwing billionaires are also massive funders of Republican politics, including Republican Senate politics. The problem is that those very powerful rightwing billionaires got sloppy, and their gift program to take care of certain Supreme Court Justices started breaking gift and disclosure rules— very likely tax rules, as well, with a few of the amenable Supreme Court Justices whom they were rewarding with lavish entertainments.

What we already know about that gift program is bad enough. How far the billionaires’ hands are in the cookie jar and how coordinated and orchestrated this secret gift program was is information that they desperately want to suppress. So they do what megadonors do and pressure Members of Congress to do what they want, and, in this case, it was help the billionaires suppress the truth of what went down here. I will close by observing that the argument that Democrats are behaving improperly in our work to clean up the mess at the Supreme Court is an argument that has some very powerful rebuttals.

The first rebuttal comes from the billionaires who are actually cooperating with our investigation. Mr. President, I ask unanimous consent to have printed in the RECORD at the conclusion of my remarks as exhibits several letters reflecting that cooperation: the first, dated July 25, 2023, to Chairman DURBIN and Senator WHITEHOUSE; the second, dated Octobers 18, 2023, to Chairman DURBIN and Senator WHITEHOUSE; the third, dated October 31, 2023, to Senators DURBIN and WHITEHOUSE; the fourth, dated November 6, 2023, to Senators DURBIN and WHITEHOUSE; and the fifth, dated November 7, 2023, Dear Committee.

I would also note that another—yet another wealthy donor, not one of these in the letters—yet another wealthy donor has cooperated with the Finance Committee’s investigation into the tax ramifications of all these secret gifts and what was disclosed and what was not disclosed. And that donor revealed to the Finance Committee compelling evidence that he collected only interest—only interest—on a quarter-million-dollar-plus loan to Justice Thomas; that the donor never collected any—any—principal payment; and that he ultimately stopped collecting either interest or principal on that quarter-million-dollar-plus loan. So the cooperation of people with our investigations rebut the argument that we have no business.

The second rebuttal comes, actually, from within the Judiciary itself because this is not the only avenue we are pursuing to get to the bottom of the mess at the Supreme Court. When I got the Judicial Conference to review the Scalia trick, which was to have intermediaries solicit dozens of personal invitations from hunting resort owners, whom Scalia had often never even met, and then failed to disclose the free vacations because, in his view, the personal invitation made it personal hospitality, within the terms of the disclosure statute—well, the members of the Judicial Conference— the chief judges of the circuits and of district courts who together comprised the Judicial Conference—those chief judges blew that trick to smithereens. They didn’t criticize me for being a bad Senator asking bad questions and going places I shouldn’t be going. They dropped the hammer on the Scalia trick. They put a dead finish end to it.

And later, when I got the Judicial Conference to look at the billionaire-funded flotillas of amicus briefs that they send in through phony front groups to tell the Justices what it is that they want them to do in cases and the phony front groups were not disclosing their true funders or their true interconnections or their true commonalities, again, this array of very distinguished chief judges didn’t look and say: Well, here is a Senator on an improper rampage. We can’t have any of this. No. They announced that they were revisiting the amicus brief disclosure rule because it needed fixing, and they are in the process of finalizing that right now. So two for two. When questions related to this investigation have been taken up by the Judicial Conference, they have actually been handled perfectly consistent with the thrust and tenor of our investigation.

The third rebuttal that you will have to trust me on, I am afraid, is that over and over, I have heard from Federal judges that this investigation is important; that we are doing good work; and that we should keep the pressure on and don’t let up and get to the bottom of this mess. I don’t mean my home State judges, either.

From all around the country, I am getting messages of support from judges appointed by Democratic and Republican Presidents that what has happened at the Court is a disgrace and that I should keep at it; that the Judiciary Committee should keep at it for the good and the health of the judiciary itself.

By comparison, when you look at the frantic complaining about our work, it mostly comes from a small handful of dark money mouthpieces actually linked to the Court-capture scheme. Obviously, Mr. Rivkin, who is Leonard Leo’s lawyer, is out to blockade our investigation. So there is one. He represents Leonard Leo against our investigation, and he summoned Justice Alito to offer an opinion to his and Leonard Leo’s benefit in the pages of the Wall Street Journal editorial page.

Another voice is Leonard Leo’s painting pal—you may remember this painting that was done at Harlan Crow’s Adirondack estate with billionaire Crow, Justice Thomas, and Leonard Leo, the Court fixer. Well, also there is painting pal Mark Paoletta. He is another persistent voice; and he couldn’t be more in the scheme than that painting shows. Also, Carrie Severino turns up. She is Leonard Leo’s dark money sidekick/successor at the dark money funded Federalist Society and the dark money funded fictitious name group, Judicial Crisis Network.

And then, of course, there is the Wall Street Journal editorial page whose people have received a million dollars in personal cash from the dark money Bradley Foundation at the middle of that dark money amicus flotilla. At attorney Rivkin’s request that I mentioned, Justice Alito even provided a cameo performance in the Wall Street Journal editorial page that defended the position of his friend Leonard Leo in plain violation of multiple judicial ethics guidelines. All that Rivkin-Leo-Alito stunt— Wall Street Journal editorial page stunt—needed was Paoletta and Severino to make it a clean sweep of all the major mouthpieces.

 Steering away from troublesome facts is a constant theme in the mess we are trying to dig into over at the Court. In the January 6 and Arizona cases, what Justice Thomas knew about his wife’s insurrection activities and when he knew it is the salient question about recusal. He has never been asked.

What made Justice Alito say that in that Wall Street Journal editorial, attorney Rivkin was acting just as an interviewer and not as Leonard Leo’s lawyer, even though Rivkin was under contract to Leonard Leo as his lawyer at that time? That question has never been asked. What became of Thomas’ quarter-million-dollar loan, and why was it not reported? That question has never been asked. What made Justice Alito think that he should suddenly start answering legal questions likely to come before the Court in the pages of the Wall Street Journal editorial page, despite every Justice in their confirmation hearing saying: That is inappropriate? That question has never been asked.

What made Thomas think the Judicial Conference action that I described—blowing the Scalia trick to smithereens—was a change in the rules and not a clarification of the rules? That question has never been asked. But it is a question that matters because the Judicial Conference actually called it a clarification and Thomas’ lawyers treated it as a change. And the difference is this: If it is a change in the law, you don’t have to go back and clean up your prior incomplete and false filings. If it is a clarification, you have to go back and clean up your prior defective filings.

So to say that this was a change despite the fact the Judicial Conference said it was a clarification is a very significant legal leap; and no justification for it was offered at the time or has been proposed since. In all of these matters, the common theme is that factfinding—the very basis of due process—factfinding is not performed around the Supreme Court Justices. Factfinding, despite being the essence of due process, this Court avoids like the plague. All of this—the behavior of our friends in the committee, the cooperation and support from billionaires and judges and others, the mischief of not answering basic fact questions—all of it signals that there is a lot going on here; that there is a lot to investigate; and that our investigation must and will continue.

To be continued.