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Op-Ed | The American Prospect | February 9, 2024

Durbin Must Enforce His SCOTUS Investigation Subpoenas

Congressional OversightEthics in GovernmentJudiciarySupreme Court
Durbin Must Enforce His SCOTUS Investigation Subpoenas

The Court’s own precedents show that its corruption scandals are exactly why Congress has subpoena power.

This article was originally published in The American Prospect. Read on the original site here.

lawsuit accusing Supreme Court Justice Clarence Thomas of failing to file his income taxes has briefly revived interest in the Supreme Court’s ongoing unresolved ethics scandals. A slew of investigative reports last year showed that Thomas and several other Supreme Court justices have, for years, taken undisclosed luxury vacations, received highly valuable gifts, and had major personal expenses paid for by wealthy businessmen and conservative political donors involved in cases before the Court.

Shortly after the first story broke, progressives including Rep. Alexandria Ocasio-Cortez (and myself) called for Thomas to stand trial for impeachment. Senate Judiciary Committee Chairman Richard Durbin (D-IL), the top Democrat in charge of oversight of the Court, quickly dismissed that.

While Durbin has advanced an ethics bill from Sen. Sheldon Whitehouse (D-RI), which would hold the Supreme Court to at least the same transparency standards as Congress, Republicans predictably reacted by closing ranks around their right-wing supermajority on the Court. Judiciary Committee ranking Republican Lindsey Graham (R-SC) called it “a bill to destroy a conservative Court,” equating the same anti-bribery disclosures that he is already supposed to follow with a lawless attack on his ideology. Wilhoit’s Law doesn’t get much clearer than that.

With legislative action gridlocked and impeachment a nonstarter in a Republican House, oversight powers are all that Durbin has left to check the Court. But so far, he’s mostly begged Chief Justice John Roberts to do his job for him. In turn, Roberts has openly rebuffed Durbin. The chief justice refused to show up for a committee hearing, and later published an unenforceable ethics code, far weaker than the one that binds lower-court judges. Durbin responded with some public grumbling, but has done little this year to continue his oversight duties on the rogue Court.

Late last November, Durbin showed the kind of backbone we should want out of a Senate committee leader. Amid Republican howling, he issued subpoenas to the landlord Harlan Crow and the conservative legal activist Leonard Leo, both of whom are central to the financial networks exposed by ProPublica and other outlets. This took genuine leadership; at the November hearing, Republican committee members tried to weaponize the Senate’s “two-hour rule” to time out the actual vote on the subpoenas, and when Durbin refused to budge, they walked out of the hearing altogether. Durbin rightly told reporters: “They [committee Republicans] think we’re going to roll over and come back sometime later and try all over again and face the same limitations … there reaches a point where there has to be a vote.”

Durbin was correct. But there also reaches a point where subpoenas have to be enforced. Otherwise, they’re just stern words on fancy pieces of paper.

If Durbin wants to actually do his constitutional duty and check the judicial branch, he will almost certainly need to enforce his subpoenas of Leo and Crow. Doing so will require unsettling some norms and showing some spine—but any ambitious Senate Judiciary Committee member willing to do so would find a gleeful public and plenty of legal history ready to support them.

It’s important to contextualize this Supreme Court scandal in the broader history of congressional oversight of the other co-equal branches of government. Past and present Supreme Courts have repeatedly reaffirmed Congress’s broad power to issue and enforce subpoenas as part of legislating against corruption.

Take the 1927 case McGrain v. Daugherty, which dealt with part of the Teapot Dome scandal, the most shocking federal bribery case of its time. Justice Willis Van Devanter affirmed that “[e]xperience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete”; thus, the ability to enforce subpoenas is “a necessary and appropriate attribute of the power to legislate.”

In 1957’s Watkins v. United States, which limited congressional inquiry powers after the abuses of the House Un-American Activities Committee, the Court affirmed that Congress is on its strongest footing to issue and enforce subpoenas for “inquiries dealing with suspected corruption or mismanagement of government officials.” Indeed, in 2020’s Trump v. Mazars, which dealt with President Donald Trump’s concealment of tax and banking records, Chief Justice John Roberts affirmed that Congress’s “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” According to a lower-court opinion, Congress “suffers a concrete and particularized injury when denied the opportunity to obtain information necessary” to its legislative duties.

In other words, the Supreme Court’s current ethics scandals are precisely the type of situation for which congressional subpoenas exist. Like in Teapot Dome, wealthy financial backers are refusing to explain the extent of their contacts with powerful government officials, who are conspicuously furthering those backers’ personal goals. This is not a political “fishing expedition” intended to humiliate political enemies, like the HUAC hearings; it is a quest for confirmation and details about information already uncovered by investigative reporters, which is directly related to the rulings of the federal judiciary.

While most of this precedent deals with congressional subpoenas of the executive branch, the same principles clearly apply to the judiciary. Indeed, while executive branch officials have some statutory protections against congressional subpoena, those privileges do not extend to the judiciary. They most certainly do not extend to any private financial backers of judiciary members, such as Leo and Crow.

So what would it look like if Durbin enforced these subpoenas?

For one, he could seek a civil injunction from the lower courts compelling Leo and Crow to comply. This would grant him the authority to seize documents and conduct physical investigations, no matter how much the billionaires scream. The Justice Department can also pursue criminal action against Leo and Crow for noncompliance, punishable with fines or up to a year in prison. Doing so does not require a Senate vote; the president of the Senate (either Vice President Kamala Harris or president pro tempore Patty Murray) just needs to certify the facts, and then pass that certification off to the relevant United States attorney.

The third and final enforcement method is Congress’s inherent contempt powers, which provide a method to demand cooperation without even needing to touch the court system. Inherent contempt has been a dormant power for years, partly due to a belief that contempt proceedings cannot be delegated to a committee. However, the Congressional Research Service has persuasively argued that the Court’s 1993 decision in Nixon v. United States—which permitted Congress to pass off judicial impeachments to a committee—necessarily also permitted Congress to delegate contempt hearings. Notably, Justice Thomas joined the majority in that opinion.

Each method has strengths and weaknesses, and all three can be pursued simultaneously. But crucially, all of Congress’s subpoena powers exist as corollaries to its legislative duties. After all, why does the Senate have fact-finding powers in the first place? So that it can gather the information necessary to write effective, targeted bills.

broad swath of the public is deeply disturbed by reactionary billionaires and reactionary activists having close ties to reactionary justices issuing reactionary rulings. That calls for a legislative response informed by thorough fact-finding. Indeed, if one takes Republican accusations of overreach literally, then under the Constitution, Durbin’s investigation into the justices’ financial backers must result in legislation to prevent this scandal from recurring.

It is a very open question right now whether Leo’s and Crow’s actions meet any current legal definitions of corruption and bribery. Subpoenas could help answer that question—and more importantly, inform a thorough congressional debate about whether it’s time to revise, update, and expand those definitions.

Uncovering Crow’s and Leo’s full relationships with the Court is precisely the sort of scenario for which Congress has subpoena powers in the first place. As of now, these plutocrats have been able to scoff at the will of elected leaders. Durbin’s actions, or lack thereof, will inform whether history remembers this Congress as stepping up or shrugging off one of the greatest threats to the American legal system in our lifetimes.

Congressional OversightEthics in GovernmentJudiciarySupreme Court

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