The Senate Judiciary Committee sent a subpoena Thursday to conservative judicial activist Leonard Leo as part of a months-long inquiry into undisclosed gifts to Supreme Court justices and he promptly rejected it, calling the move “politically motivated.”
“I am not capitulating to his lawless support of Senator Sheldon Whitehouse and the left’s dark money effort to silence and cancel political opposition,” Leo said of Sen. Dick Durbin (D-Ill.), the committee’s chairman, in a statement to The Washington Post.
The committee voted along party lines on Nov. 30 to subpoena Leo and Texas billionaire Harlan Crow following reports that Supreme Court Justices Clarence Thomas and Samuel A. Alito accepted — and did not disclose — free luxury travel and gifts from Crow, Leo and conservative donor Robin Arkley II.
Crow did not receive a subpoena Thursday, his spokesman Michael Zona told The Post.
In a statement to The Post, Durbin said sending a subpoena to Leo was a necessary step.
“Since July 2023, Leonard Leo has responded to the legitimate oversight requests of the Senate Judiciary Committee with a blanket refusal to cooperate,” Durbin said. “His outright defiance left the Committee with no other choice but to move forward with compulsory process. For that reason, I have issued a subpoena to Mr. Leo.”
“Mr. Leo has played a central role in the ethics crisis plaguing the Supreme Court and, unlike the other recipients of information requests in this matter, he has done nothing but stonewall the Committee. This subpoena is a direct result of Mr. Leo’s own actions and choices,” Durbin continued.
The committee did not respond when asked for comment on why only Leo received a subpoena. And when asked why so much time elapsed between the vote and Leo’s subpoena being sent, Durbin’s office declined to expand on his original statement.
David B. Rivkin Jr., an attorney for Leo, said in a letter addressed to Durbin and dated Thursday that Leo will not comply with the committee’s “unlawful and politically motivated subpoena.”
With Leo’s refusal, Democrats would be forced to hold a Senate vote if they wanted to seek enforcement of the subpoena in court — a nearly impossible task in a narrowly split chamber with 60 votes needed to break a filibuster.
The November vote to subpoena Leo and Crow came two weeks after the Supreme Court announced that the justices would, for the first time, follow a broad code of conduct to promote “integrity and impartiality.” The high court’s new ethics rules were praised by some as a positive first step. But legal ethics experts criticized them for not including a process for handling complaints that a justice has violated the standards and as giving individual justices too much discretion over recusal decisions.
At the November hearing, Democratic senators said the code did not go far enough and that it was necessary to use subpoenas and press for more information from Crow and Leo to inform proposed legislation.
“Without an enforcement mechanism, this code of conduct, while a step in a positive direction, is insufficient to restore the public’s faith in the Court,” Durbin said in his prepared opening statement. “Because of this, congressional action remains both appropriate and necessary. The Committee’s investigation into the Court’s ethical crisis — and these subpoenas in particular — are key pieces of our legislative efforts to establish an effective code of conduct.”
Republicans on the committee have criticized the subpoena effort as a political attempt to discredit the high court’s conservative majority.
Democrats on the committee launched the probe into the justices’ relationships with private benefactors after ProPublica revealed last April that Thomas, for many years, failed to disclose on his annual reports free luxury vacations and private jet travel he received from Crow, his longtime friend. Thomas also did not initially report Crow’s purchase of three properties from Thomas and his relatives or that Crow paid the boarding school tuition for Thomas’s great-nephew, of whom Thomas had legal custody.
ProPublica also revealed that Leo arranged for Alito to take a luxury fishing trip to Alaska in 2008 that included free lodging and private jet travel. The lodging, according to the ProPublica report, was provided by Arkley. Thomas and Alito said they did not think they were required to report the trips in annual disclosure forms. After ethics rules were revised in March 2023, making clear that judges and justices must report private jet travel, Thomas disclosed three 2022 trips on Crow’s jet. He also, for the first time, listed the 2014 real estate sale to Crow, a transaction that most ethics experts said should have been reported long ago.
In July, the Judiciary Committee advanced legislation that would require the high court to adopt an ethics code, create a system for investigating alleged violations of that code, and require justices to publicly explain recusal decisions. The bill lacks the bipartisan support necessary to clear the full Senate and is unlikely to be brought up for consideration in the GOP-controlled House.