Subpoenaing friends of public officials we don’t like — how crazy is that? But this is where we are, as the Senate Judiciary Committee meets Thursday to consider voting on subpoenas to two individuals whose crimes are simply being friends with Supreme Court Justices Clarence Thomas and Sam Alito. This is not only unconstitutional, it would set an insane precedent.
Mark my words, this despicable act will come back to haunt the Democrats — and this time their friends, just as their prior decisions to erode Senate norms, rules, and precedents have before.
Sen. Dick Durbin, with a big shove from corrupt conspiracy theorist and racist Sen. Sheldon Whitehouse, will try to issue subpoenas to Harlan Crow for 25 years of information about vacations with his longtime friend, Justice Clarence Thomas. Yes, that’s correct. Tell us where you went, with whom you traveled, and for how long. They are attempting to subpoena a private citizen who has never worked for the government about his personal friendships and travels. They also are seeking to issue a subpoena to Leonard Leo for the same information related to Justice Alito. This is straight out of the Gestapo playbook.
Why on Earth would they demand this information from a private citizen? Durbin and Whitehouse claim they are considering legislation to enact an ethics code to govern the justices’ conduct. But this is dishonest — a fabricated pretext to harass justices and their friends as revenge for their jurisprudence.
First, Congress has no authority to enact an ethics code on the Supreme Court because the court is established in the Constitution and its judicial duties cannot be dictated by a separate branch. Schoolchildren are taught about the separation of powers doctrine, but the concept apparently eludes Democrats on the Senate Judiciary Committee.
Because Congress’s oversight powers can only be used in furtherance of a valid legislative purpose, and there is none here, these subpoenas would be fatally defective. It’s also worthwhile to note that even if their stated purpose were constitutional, it’s easy enough to invent a legislative purpose as a pretext to use the powers of Congress to enact political revenge — a dangerous precedent if ever allowed to be set. This is why the norm in the Senate has been to approach issuing subpoenas with caution and bipartisan deliberation.
Moreover, the Senate has acted in bad faith in this inquiry. Durbin sent a letter to Crow on May 8, 2023, seeking information. While Crow’s lawyer set forth why the Senate had no right to request this information, he offered, in an effort to accommodate this request, five years’ worth of data on June 12, one month before the Senate Judiciary Committee held a markup to consider the Supreme Court “ethics” bill.
But Durbin and Whitehouse did not respond until Oct. 5, nearly four months later, long after the committee marked up the relevant legislation on July 20. Taking this long to simply respond, and passing the legislation that is supposedly the “legislative purpose” behind the subpoenas, further shows how inept and bad faith these Democrat senators are. Why would they even need the information if they’ve already passed the bill?
Their conduct makes clear that this whole investigation is about punishing Thomas and Alito’s friends because the senators hate these justices for their jurisprudence. Not negotiating in the subpoena process, which is standard practice, also wouldn’t fly with any right-minded judge were the subpoenas ever to be litigated. Short of any impeachment proceeding, the committee has no power to compel any information from these justices, so they are targeting these private citizens for no other reason than that they are friends with these justices. How despicable.
In fact, the Supreme Court did adopt a Code of Ethics on Nov. 13, 2023. Durbin had previously announced that if the court adopted a code, he would end his inquiry. The code was good enough for go-to left-wing judicial expert Professor Stephen Gillers, who pronounced that the code was a “commendable piece of work.” But Durbin broke his word and is apparently continuing to go forward with this unconstitutional probe.
The Senate Republicans on the committee have stepped up to meet this assault and have offered up 150 subpoenas to friends of the liberal justices and other subject matters of interest.
There’s a subpoena for Neil Katyal for any records regarding his interactions with then-Solicitor General Elana Kagan regarding the defense of the Obamacare law. Many have argued that she should have recused from this case as a justice, and these records may shed some more light on this potential scandal. The Republicans also want to compel him to testify under oath on this matter.
Committee Republicans are also seeking a subpoena for Democrat billionaire David Rubenstein for records relating to lending his private plane to Justice Breyer, and hopefully broadened to cover any other public official. It should also cover all records related to the many times he allowed Joe Biden to use his $39 million mansion on Nantucket for free. Did he get anything for these gifts? Why didn’t Joe Biden disclose them?
How about a subpoena for the Democrat billionaire Pritzker family and its foundations, which flew Justice Breyer around the world on 17 all-expense trips — have they provided similar or other hospitality to any other public official? They are an Illinois-based empire, so it may be worth probing any gifts to Durbin.
Finally, I would suggest a subpoena to the reportedly all-white beach club, Bailey’s Beach Club, of which Whitehouse and his wife have been longtime members. There are claims that, in response to criticism of his being a member of this club, Whitehouse transferred his shares to his wife, making her among the largest shareholders in the club, which was founded in the 1890s and has had the Vanderbilt and Astor families as members.
Whitehouse likes to assert the Senate has higher ethics standards than the Supreme Court, but the court’s ethics code, as well as the one for lower courts, counsels judges against being a member of a racially discriminatory club. Whitehouse violates this provision.
Whitehouse claims that he and his wife have tried to make improvements to the club regarding diversity. He is also a member of a sailing club that he says is not diverse. The Republicans should offer a subpoena for all records to both clubs relating to Whitehouse and his wife’s efforts to change these racially discriminatory practices.
It is astonishing that a wealthy, white senator who has been a member of an all-white club would be terrorizing a black justice who was born into abject poverty under segregation in a Democrat-governed state. Justice Thomas triggers Whitehouse because he is a black conservative who has never bowed to the left’s racist demand that he think a certain way because of the color of his skin.
Mark Paoletta served as a lawyer in the George H.W. Bush White House Counsel’s office and worked on the confirmation of Justice Thomas. He served as General Counsel of the Office of Management & Budget during the Trump Adminstration. He is a senior fellow at the Center for Renewing America.
Comments are closed.