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Leonard Leo and Harlan Crow Would Be Wise to Comply with Their Senate Subpoenas

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On Thursday, the Senate Judiciary Committee escalated its investigation into potential ethical lapses at the Supreme Court by authorizing subpoenas to billionaire businessman Harlan Crow and conservative activist Leonard Leo

The demands for information come after months of increasingly troubling reports on decades of unreported financing for opulent vacations, seats on private jets, a luxury RV, and private school tuition, among other gifts received by Supreme Court justices from those with business before them. Crow had a simple message for the Committee: pound sand. 

In a public statement rejecting the Committee’s prior information requests, Crow said he “won’t be bullied by threats from politicians” while Leo called the Committee’s investigation “vile and disgusting,” also refusing to produce requested documents.

Crow may in fact feel bullied, and Leo may feel that the inquiry is ill-intentioned. But as a matter of law, the two are obliged to comply anyway.

Weak Arguments for Noncompliance

So far, the justifications for noncompliance are unpersuasive – as may eventually become clear in court should Crow and Leo ignore the subpoenas.

Leo’s counsel has argued that the inquiry “exceeds the limits placed by the Constitution on the Committee’s investigative authority.” But it is unclear to which limits he is referring. Congress enjoys an expansive constitutional authority to investigate just about any matter it chooses, and to enforce that authority through compulsory tools like subpoenas. The Supreme Court has explained that the scope of this investigative power “is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” So long as the inquiry could plausibly relate to an issue “on which legislation could be had” – in this case, efforts to pass new judicial ethics laws – Congress is well within constitutional bounds to exercise its investigative muscles. 

Crow has pointed to the fact that the Committee has already drawn up the legislation the inquiry is designed to inform, concluding that it therefore lacks a “valid legislative purpose” in requiring his cooperation. This argument posits a novel and likely unavailing read of Congress’s lawmaking prerogatives. The legislation to which Crow refers  – the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act – could be the final legislative effort to once and for all address conflicts of interests affecting the Supreme Court. But that seems unlikely. Informed by the findings from its current inquiry, the Committee is free to revise its bill, scrap it and start fresh, draft additional legislation, decide its bill is sufficient, or simply contemplate legislation at a future time.  Courts have never reviewed what phase a bill might be in, or even whether one exists in the rare instances of enforcing a subpoena. In short: points for creativity, but demerits for trying to put Crow above the law.

Crow also called attention to his status as a “private citizen,” suggesting that this somehow insulates him from a congressional investigation. But it is unclear how that status helps his cause. It is true that at times, interbranch disputes have led Congress to curtail or even abandon its oversight activities. (For instance, when Chief Justice John Roberts recently declined an invitation to testify on Supreme Court ethics lapses). But Crow is not part of any branch of government; as he emphatically asserted, he is a private citizen. Congress, like the courts and the executive branch, does not have to specially weigh his co-equal prerogatives and authorities in demanding information from him.

Courts have repeatedly vindicated this investigative authority with respect to private entities. For instance, in 2016, the Senate sued the CEO of Backpage.com for noncompliance with a subpoena regarding the website’s alleged links to sex trafficking. A district court ordered the company to hand over all of the requested documents, reaffirming that the “Constitution authorizes Congress to investigate any issue or subject about which it can enact legislation.” An appellate court and the Supreme Court declined to intervene.

Leo’s attorney seeks to save his client from well-established law by characterizing the Committee’s inquiry as “political retaliation.” Given the serious conflicts of interest exposed over the last several months, this characterization is disingenuous at best. But it is also irrelevant. Carl Ferrer, the CEO of Backpage.com, made a similar argument, describing the Senate inquiry as a “prosecutorial” effort to punish the company. The district court – quoting the Supreme Court in a similar case – reminded Ferrer that “the motives of committee members” have no bearing on his obligation to comply. Disagreeing with the “wisdom of congressional approach or methodology” is not, according to the Supreme Court, grounds for invalidating a subpoena.

To be sure, there are limits to Congress’s investigative authorities. They cannot, for instance, be used to violate constitutionally protected rights. In 1975, a federal court held that congressional staff could be sued for unlawfully removing documents from a private residence in violation of the Fourth Amendment’s protections against unreasonable searches and seizures. But such cases are rare – and do not have corollaries here. Crow may try to fashion one anyway, such as by asserting that the Committee’s requests raise “serious… privacy concerns.” But a court is unlikely to share Crow’s concern over keeping his dealings with justices private. The judiciary has consistently refused to place limits on Congress’s investigative powers based upon purported concerns about confidentiality. 

How Can Congress Respond? 

What if the subpoena recipients remain intransigent? For its first 140 years, Congress would invoke its inherent contempt power, a long-recognized authority to punish those who obstruct its work such as by having them arrested by the Sergeant-at-Arms. (As it happens, the first arrests were of two private citizens for attempting to bribe members of Congress.) This is an unlikely option – the last arrest was in 1935 – though we have explained elsewhere how Congress could dust-off this tool if it wished.

Two other options remain. First, the Committee could hold the men in contempt and then refer the matter to the Justice Department for criminal prosecution. (Refusing to comply with a congressional subpoena is a violation of federal criminal law.) Second, the Senate could initiate civil litigation, seeking a court-ordered injunction to compel compliance.

Tempting either is a risky bet. While it has been customary for the full Senate to vote on a criminal contempt citation, as a matter of law, the Committee need only to report the citation to the body, with the President of the Senate transmitting it to the Justice Department – availing the Committee of an expeditious and powerful tool. Of course, the Justice Department could choose not to prosecute, but it has typically done so unless the contemnor is an executive branch official. Initiating litigation, meanwhile, does require a full Senate vote, making it vulnerable to a Republican filibuster. However, should Democrats retake the House next year, the House Judiciary Committee may pick up where its Senate counterpart left off. (That committee advanced a similar ethics bill in the last Congress.) And there is no filibuster in the House, which could pursue litigation with a simple majority vote.

No matter the route, Congress should carry the fight forward. At stake is not only the integrity of the Supreme Court, but also of Congress. In response to the congressional push for judicial ethics reform, Justice Samuel Alito quipped that “[n]o provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period” – baffling constitutional law scholars who pointed to numerous such provisions that explicitly do just that. Alito’s strategy, it seems, is to wish-away congressional authority with blustery and defiant rhetoric. Today’s subpoena recipients seem to be taking a page from their friend’s playbook. 

Whether certain justices and their friends like it or not, Congress is a co-equal branch of government. It now falls on Congress to remind them.

IMAGE: Senate Judiciary Committee Chairman Richard Durbin (D-IL) speaks during a meeting on Nov. 9, 2023 in Washington, D.C. (Photo by Alex Wong via Getty Images)

The post Leonard Leo and Harlan Crow Would Be Wise to Comply with Their Senate Subpoenas appeared first on Just Security.

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