UPDATE: Joan McCarter
Sen. Ron Wyden is not amused by the latest stonewalling of his inquiries by Crow’s team. He’s talking subpoenas. “I’ve already begun productive discussions with the Finance Committee on next steps to compel answers to our questions from Mr. Crow, including by subpoena, and those discussions will continue,” he said in a statement Tuesday.
Michael Bopp, lawyer for Harlan Crow—Republican megadonor and very dear and generous friend to Supreme Court Justice Clarence Thomas—has grudgingly relented in blocking a Senate Judiciary Committee inquiry into that friendship. Bopp offered to talk to committee staff in a letter obtained by CNN, though he still insists that the committee has no business questioning the friendship between Crow and Thomas, which is one that includes the expenditure of millions of dollars’ worth of hospitality and gifts to Thomas and his family. In a series of articles, ProPublica has detailed the many favors extended by Crow to Thomas.
Bopp’s offer to respond to committee staff follows an exchange of letters between him and committee Chair Dick Durbin, who initially wrote to Crow and the holding companies that own his private jet, private yacht, and Topridge Camp to find out the extent of his generosity. Bopp blew off Durbin’s initial request, claiming that the committee not only does not have “the authority to investigate Mr. Crow's personal friendship with Justice Clarence Thomas,” but, “Most importantly, Congress does not have the constitutional power to impose ethics rules and standards on the Supreme Court.”
That was news to constitutional scholars and to Supreme Court Chief Justice John Roberts himself. In a follow-up letter to Bopp, Durbin and fellow committee member Sen. Sheldon Whitehouse delineated all of the ethics legislation that Congress has enacted that applies to the justices over the years, which the justices have complied with “for decades without complaint or suggestion that they encroach on the Supreme Court’s core Article III judicial powers.” In fact, the senators continue, “Chief Justice Roberts stressed that the justices adhere to such statutes in the Statement on Ethics Principles and Practices that he transmitted to the Committee on April 25, 2023.”
In his response to that letter, Bopp conceded that, yes, the Congress does have a role here. “We respect the Senate Judiciary Committee’s important role in formulating legislation concerning our federal courts system, and would welcome a discussion with your staff,” he said in his letter. That’s a small concession to reality, possibly in reaction to the legal community laughing at him getting the separation of powers argument embarrassingly wrong, or possibly because his flawed argument is further damaging Thomas’ reputation and harming the legitimacy of the court.
But Bopp still maintains that the Supreme Court and Crow are above Congress’ petty laws, even though Congress has the right to craft them. “To reiterate, Congress does not have the power to impose ethics standards on the Supreme Court,” Bopp wrote, and thus “cannot mount an investigation for the purpose of helping craft such standards.” He gave a little more justification for his position this time around, writing “because the Committee has requested information about the leadership of a coequal branch of government—implicating sensitive separation of powers considerations—it must satisfy a higher standard in order to establish a valid legislative purpose for seeking the requested information.”
Bopp’s argument has evolved from “you have no power here” to “a higher standard is required for you to assert your power here,” which remains bullshit and a stalling tactic. His grudging offer to say as much to the committee staff in person is the tell that dragging this out is his main objective. He is also likely trying to avoid getting his client subpoenaed by the committee, an outcome that is looking likelier by the day.
This isn’t the only Senate committee Crow’s lawyer is trying to obstruct. Sen. Ron Wyden, chair of the Finance Committee, was the first lawmaker to request information from Crow. He’s taking the tax angle, which is in the purview of his committee. Specifically, he wants to investigate whether the very valuable and expensive gifts and hospitality Crow has provided have been reported as required for gift tax purposes. Wyden and Bopp have exchanged a series of letters, and Bopp is still refusing to cooperate.
The longer Crow continues to stonewall Congress, the worse it is for his buddy Thomas’ reputation. That in turn puts the focus on Roberts’ and Bopp’s absolute refusal to address the situation and to take on real, substantive ethics reforms for the court. Crow and his lawyers are doing the court no favors here.
They are, however, helping to make the case for Congress to act to force court reform. A Supreme Court which believes that it and the individual justices that sit on it are above the reach of Congress is a threat to democracy, plain and simple. The court’s reaction to this scandal is only cementing the need for Congress to fix it.
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