House investigators found “substantial evidence” that Rep. George Santos (R-N.Y.) knowingly violated a litany of ethics and criminal laws, according a House Ethics Committee report released Thursday.
“Representative Santos’ conduct warrants public condemnation, is beneath the dignity of the office, and has brought severe discredit upon the House,” Reps. Michael Guest (R-Miss.) and Susan Wild (D-Pa.), the committee’s chairman and senior Democrat, said in a joint statement.
The report recommended that the allegations against Santos be referred to the Justice Department but stopped short of calling for Santos’s expulsion from the House or other discipline. Guest told reporters Wednesday that recommending punishment for Santos would have taken the panel several more months. Instead, he said, the report would simply be publicly released so that lawmakers could read it and “take whatever action that they felt necessary.”
Do gag orders against presidential candidate Donald Trump in his civil or criminal trials violate the First Amendment?
What should we make of Trump’s claims that his actions to overturn the results of the 2020 elections are protected free speech?
How should we assess the dangers of government “jawboning” of social media platforms to remove objectionable conduct?
On Season 5, Episode 3 of the ELB Podcast, we delve into these issues with First Amendment experts Genevieve Lakier and Eugene Volokh.
WaPo: “The Justice Department late Monday unsealed its indictment of Gal Luft, a dual Israeli and American citizen who ran a Maryland think tank. The indictment describes what it casts as an effort by Luft and a Chinese oil company representative to “recruit” a “former senior U.S. government official” and get him installed in a position of power in Trump’s orbit, even before his election.”
Years ago in conversation with an originalist and textualist, the person I was speaking to defended originalism and textualism as constraining judges. The counterexample on the right was Justice Alito voting his values. The idea is that if all judges embraced these supposedly neutral methods of interpretation, their values would matter less, and this would be good for everyone on the left and right.
I’ve always been skeptical about these claims, and believe that in the most salient cases (the ones that make the front page of the New York Times) a justice’s values matter the most whether or not they claim they are doing originalism and textualism. (I make this argument most fully in my book on Justice Scalia’s jurisprudence, The Justice of Contradictions.)
Justice Alito didn’t start off a textualist but in more recent years, he has purported to be one. But his purported textualism never constrains his bottom line, which is relentlessly tied to his socially conservative values. I developed this argument most fully in my Senate Judiciary Committee testimony analyzing Justice Alito’s particularly poor textual analysis in Brnovich v. DNC. Justice Alito completely mangled the words of Section 2 of the Voting Rights Act to create a state-friendly test that severely weakens the Voting Rights Act in the context of vote denial claims. He made a similar move in his dissent in last week’s Allen v. Milligan case.
So it should be no surprise that Justice Alito engaged in bad faith (and simply bad) textualism in his attempt in the Wall Street Journal opinion pages to prebut a Propublica report that showed that he took an unreported trip on a private plane owned by billionaire Paul Singer to go to a lodge (paid for by another person) in Alaska for a fishing trip. Propublica estimates that such a ride could cost $100,000 (though Alito said the seat would have been empty if he didn’t take it, somehow rendering the free seat valueless).
Justice Alito argues that he need not have reported the free travel on his disclosure forms under the rules as they existed because (now quoting Alito quoting the rules): “[p]ersonal hospitality need not be reported,” and “hospitality” was defined to include “hospitality extended for a non-business purpose by one, not a corporation or organization, . . . on property or facilities owned by [a] person . . .”
Now one problem with this is that it was not clear that this was “personal” hospitality. Justice Alito goes out of his way to say multiple times that he barely knew Paul Singer (despite Singer being on the trip, introducing Alito at FedSoc events, etc.) This is an argument that boxed Alito in, as Charles Geyh told Propublica:
“If you were good friends, what were you doing ruling on his case?” said Charles Geyh, an Indiana University law professor and leading expert on recusals. “And if you weren’t good friends, what were you doing accepting this?” referring to the flight on the private jet.
But the even weaker part of Justice Alito’s textualist argument is arguing that transportation (on a private jet) constitutes “hospitality on … facilities” owned by a person. Here’s what Justice Alito says about this in his WSJ piece:
The term “facilities” was not defined, but both in ordinary and legal usage, the term encompasses means of transportation. See, e.g., Random House Webster’s Unabridged Dictionary of the English Language 690 (2001) (defining a “facility” as “something designed, built, installed, etc., to serve a specific function affording a convenience or service: transportation facilities” and “something that permits the easier performance of an action”). Legal usage is similar. Black’s Law Dictionary has explained that the term “facilities” may mean “everything necessary for the convenience of passengers.” Federal statutory law is similar. See, e.g., 18 U.S.C §1958(b) (“ ‘facility of interstate commerce’ includes means of transportation”); 18 U.S.C §2251(a) (referring to an item that has been “transported using any means or facility of interstate commerce”); Kevin F. O’Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice and Instructions §54.04 (February 2023) (“the term ‘uses any facility in interstate commerce’ means employing or utilizing any method of . . . transportation between one state and another”)
This analysis is, to use a techical legal term, bullshit. The ordinary speaker of the English language would not refer to a ride on a plane as hospitality on Singer’s “facilities.” (It might apply to use of the bathroom on the plane, a different meaning of “facilities”.) Under the noscitur a socciis canon, a word is known by the company it keeps. Here, facilities appears with the term “on property or facilities,” and the ordinary reading here would be on real property owned by a person, not on a plane, boat, or car.
Justice Alito mangled the Random House definition of “facilities,” trying to bootstrap the definition’s meaning because the definition included the example of “transportation facilities.” See here:
As used in the Random House definition, an airport might be a “transportation facility,” not an airplane.
The Justice also purported to quote Black’s Law Dictionary. I searched Black’s Law Dictionary on Westlaw in many ways and I cannot find the phrase “everything necessary for the convenience of passengers.” (Update: more on the origins of this phrase in this later post.) Perhaps that phrase is in an earlier version of that dictionary but without a citation I cannot check. And those technical legal definitions of a “facility in interstate commerce” that Alito cites—those are technical uses of the word. 18 U.S.C §1958, which Justice Alito quotes, is a statute making it a federal crime to engage in murder for hire in certain circumstances!
There is no reason to believe that the reporting requirements for judges should be read in their technical sense rather than in the sense that an ordinary reader would give to the words. That’s Scalia Textualism 101. Ordinary parlance says that a free ride on a plane is not “hospitality on facilities” owned by a person.
In the end, the reporting requirement is aimed just at this: an ordinary reader would expect (and the public would want to know) if a Supreme Court Justice got a ride on a private jet paid for by a billionaire with business before the Court. Anyone who says otherwise upon reading the reporting rule is not engaged in honest textualism.
Justice Alito’s textualist prebuttal a masterstroke? More like a horrible embarrassment.
UPDATE: It is far worse than my original analysis from last night shows. Justice Alito’s reference to “facilities” was quoting from the filing instructions. The statute itself exempts only “food, lodging or entertainment received as personal hospitality of an individual….” 5 U.S.C. s 13104. A plane is not food, lodging or entertainment (though perhaps Alito slept on his flight and would claim lodging!). Kathleen Clark develops this argument here.
Further, if Singer’s corporation owned the jet, rather than Singer personally, the exception would not apply even on Justice Alito’s own terms, because the instructions exclude corporate-owned facilities.
Conservative judicial activist Leonard Leo arranged for the wife of Supreme Court Justice Clarence Thomas to be paid tens of thousands of dollars for consulting work just over a decade ago, specifying that her name be left off billing paperwork, according to documents reviewed by The Washington Post.
In January 2012, Leo instructed the GOP pollster Kellyanne Conway to bill a nonprofit group he advises and use that money to pay Virginia “Ginni” Thomas, the documents show. The same year, the nonprofit, the Judicial Education Project, filed a brief to the Supreme Court in a landmark voting rights case.
That case was Shelby County (here’s the brief). I’m pretty skeptical that any brief had much of an impact on Justice Thomas’s inclination in Shelby County; if the Judicial Education Project was seeking to buy a vote in that case, Justice Thomas’s vote was already about as guaranteed as it gets.
Still, it’s not a great look for a group with frequent business before the court to set up a back-channel payment to a Justice’s spouse while understanding that it’s a sufficiently not-great look to take care that the spouse in question isn’t mentioned on the paperwork. And it’s not hard to imagine howls if you replace the names of these particular parties with others.
That’s the lede from Raw Story.
The piece goes on to state that “there’s no evidence that the lawmakers used information they obtained through their public service to inform their First Republic stock trades,” and four of the five (the other offered no comment) said that the relevant portfolios are handled by independent money managers without the Members’ knowledge of or control over particular transactions.
Reuters on the Judiciary Committee’s hearing today.
The NYT reports on the relationship between the school and several Justices.
NPR has his full statement:
Harlan and Kathy Crow are among our dearest friends, and we have been friends for over twenty-five years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them. Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable. I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines. These guidelines are now being changed, as the committee of the Judicial Conference responsible for financial disclosure for the entire federal judiciary just this past month announced new guidance. And, it is, of course, my intent to follow this guidance in the future.
For those interested in the text, the relevant statute requires reporting of:
The identity of the source, a brief description, and the value of all gifts aggregating more than the minimal value as established by section 7342(a)(5) of this title, or $250, whichever is greater, received from any source other than a relative of the reporting individual during the preceding calendar year, except that any food, lodging, or entertainment received as personal hospitality of an individual need not be reported, and any gift with a fair market value of $100 or less, as adjusted at the same time and by the same percentage as the minimal value is adjusted, need not be aggregated for purposes of this subparagraph.
For more than two decades, Thomas has accepted luxury trips virtually every year from the Dallas businessman [Harlan Crow] without disclosing them, documents and interviews show. A public servant who has a salary of $285,000, he has vacationed on Crow’s superyacht around the globe. He flies on Crow’s Bombardier Global 5000 jet. He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and to Crow’s sprawling ranch in East Texas. And Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks.
The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.
These trips appeared nowhere on Thomas’ financial disclosures. His failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts, two ethics law experts said. He also should have disclosed his trips on the yacht, these experts said.
Here’s the law in question, requiring annual filing by government officials (including Supreme Court justices), and guidance on filing by the Administrative Office of the Courts (gifts are covered starting on p. 28). Here are Justice Thomas’s past disclosures, which often list no reportable gifts.
David Savage, in the LA Times, points out that the “LA Times reported about Justice Thomas’ gifts 20 years ago. After that he stopped disclosing them
House Minority Leader Kevin McCarthy spent the first two days of the new year trying to shore up GOP support for his bid to be Speaker by releasing a series of proposals aimed at winning over hard-right detractors who stand to torpedo his ascension.
The part of his proposed changes to House rules that drew the most attention was allowing just five House members to call for a vote at any time on ousting the Speaker; that would render McCarthy beholden to the most extreme members of his caucus, should he get on their wrong side. But buried in the text was another provision that could be highly consequential for the new Congress being sworn in on Tuesday: language that would effectively gut the Office of Congressional Ethics (OCE), as the independent panel faces pressure to investigate lawmakers who participated in the Jan. 6 attack on the Capitol.
Most significantly, McCarthy’s proposal would require OCE to hire its staff for the 118th Congress within 30 days of the resolution’s adoption, a requirement that sources familiar with the process tell TIME would make it exceedingly difficult for the office to have the resources it needs to conduct its investigations, given how long it takes to hire candidates for roles in the federal government. The proposal would also block OCE from hiring new employees over the next two years if someone leaves their position, sources say.
In 2009 and 2010 — the first Congress scrutinized by the Office of Congressional Ethics, which was created in 2008 — three lawmakers refused to cooperate with the office’s 68 investigations, a noncooperation rate of just 4 percent.
This year, six out of 14 House lawmakers under investigation have refused to participate — a rate of 43 percent, the highest on record.
Mr. Ashmawy said he believed the higher noncooperation rate was a result of investigators focusing on fewer cases, and more potentially serious ones. Lawmakers who may be glad to meet with ethics investigators to clear up an honest mistake or minor oversight are more reluctant to cooperate if they think they may face weightier consequences, he said.
There is no requirement that lawmakers cooperate with the Office of Congressional Ethics, but legislators who do so often are able to resolve what had appeared to be violations of ethics rules.
The fact that many will no longer even meet with ethics investigators reflects a troubling trend in American politics in which improper behavior is no longer a political liability, ethics experts say.