Category Archives: ethics investigations

“Harlan Crow Provided Clarence Thomas at Least 3 Previously Undisclosed Private Jet Trips, Senate Probe Finds”

ethics investigations, statutory interpretation, Supreme Court

These flights were revealed by the Senate Judiciary Committee based on disclosure by Crow, not Justice Thomas.

Justice Thomas has maintained (including in response to the latest) that he was told that these flights fall under an exception in the disclosure laws for transportation related to personal hospitality.  And while that may well be true, that advice would not have followed the text of the relevant statute, which exempts “food, lodging, or entertainment received as personal hospitality.”

Consider, for example, how the author of today’s SCOTUS majority opinion in the Garland v. Cargill bumpstock case might address the argument that “food, lodging, or entertainment” includes “transportation.”

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“D.C. ethics board recommends Rudy Giuliani be disbarred”

ethics investigations, fraudulent fraud squad

NBC News:

The D.C. Bar’s Board on Professional Responsibility on Friday recommended that Rudy Giuliani be barred from practicing law in the nation’s capital.

In its report, the board cited Giuliani’s work in Pennsylvania following the 2020 presidential election in which he sought to have the state’s election results thrown out in favor of his former client Donald Trump.

“The Board agrees with the Hearing Committee that Disciplinary Counsel proved by clear and convincing evidence that Respondent violated Pennsylvania Rules of Professional Conduct,” the report says. “With respect to sanction, we agree with the Hearing Committee that Respondent should be disbarred.”

This report follows one from last year in which a disciplinary board for the D.C. Bar also recommended disbarment for Giuliani. Now, the case heads to the D.C. Court of Appeals, which will decide whether Giuliani, who formerly served as the mayor of New York City, will be disbarred.

In a statement provided to NBC News, Ted Goodman, a spokesperson for Giuliani, blamed the findings in the report on “partisan Democrats” and said the decision would discourage attorneys from taking on Trump as a client.

“This recommendation comes as no surprise as partisan Democrats continue to destroy the credibility of the American justice system all in an effort to beat President Trump and to hold onto power,” Goodman said.

Here is the report, via Democracy Docket.

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Justice Alito’s Flag Story Doesn’t Add Up

ethics investigations, Supreme Court

New must-read reporting from Jody Kantor in the NYT:

To better understand the clash, The Times interviewed Ms. Baden, her mother and her husband, as well as other neighbors, and reviewed the texts that Ms. Baden and her husband sent to friends after the episodes. Justice Alito, who did not respond to questions for this article, has in recent weeks given his own explanation of what happened.

There are some differences: For instance, the justice told Fox News that his wife hoisted the flag in response to Ms. Baden’s vulgar insult. A text message and the police call — corroborated by Fairfax County authorities — indicate, however, that the name-calling took place on Feb. 15, weeks after the inverted flag was taken down.

Justice Alito’s version of events was that the flag “was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs,” he said in a statement to The Times. Mrs. Alito, 70, who has never sought a public role, has not spoken out about the controversy.

The justice later elaborated in an interview with Fox News, saying that in January 2021 a neighbor on the block displayed a vulgar anti-Trump sign, near where children wait for the school bus. Mrs. Alito complained to the neighbor. “Things escalated and the neighbor put up a sign personally addressing Mrs. Alito and blaming her for the Jan 6th attacks,” tweeted the Fox News reporter who interviewed the justice.

While the Alitos were on a neighborhood walk, “there were words between Mrs. Alito and a male at the home with the sign,” the network reported. The justice said the man used “vulgar language, ‘including the C-word,’” After that exchange, “Mrs. Alito was distraught and hung the flag upside-down,” the Fox reporter relayed.

But in the Baden family’s version, the justice’s wife initiated the conflict. “Aside from putting up a sign, we did not begin or instigate any of these confrontations,” Ms. Baden said later….

On Jan. 17, the upside-down flag hung at the Alito household, according to a photograph obtained by The Times. Neighbors say it was up for a few days. If the flag was intended as a message for the Badens, whose home does not have a direct view of the Alito residence, they missed it, they said.

The inauguration of President Biden, held three days later, was attended by six Supreme Court justices. Justice Alito and two others skipped it out of concerns about Covid, a court spokeswoman said at the time. That day, Ms. Baden and her then-boyfriend decided to drive past the Alito home. “There was a part of me that’s like, let’s see what’s going on,” Ms. Baden said.

Mrs. Alito happened to be standing outside. According to interviews with Ms. Baden and her husband, as well as messages they sent to friends at the time, Mrs. Alito ran toward their car and yelled something they did not understand. The couple continued driving, they said, and as they passed the Alito home again to exit the cul-de-sac, Mrs. Alito appeared to spit toward the vehicle.

The couple, still shaken by the Capitol riot, said the encounter left them feeling uneasy and outmatched by the wife of someone so powerful.

The same day, a Washington Post reporter who had heard about the inverted flag arrived to ask about it. Mrs. Alito looked upset, yelled that the flag was a “signal of distress,” then shouted about a dispute with neighbors, according to an article published on Saturday.

The conflict then seemed to quiet down. But on Feb. 15, the couple were pulling in trash bins when the Alitos, who seemed to be on a stroll, appeared. Mrs. Alito addressed the pair by name, used an expletive and called them “fascists,” the couple told The Times and said in texts at the time. Justice Alito remained silent, they added. The Alitos began to walk away.

That was when Emily Baden snapped, she said. She does not remember her precise words, but recalls something like this: How dare you behave this way. You’ve been harassing us, over signs. You represent the highest court in the land. Shame on you.

Ms. Baden said that she — not her partner, as Justice Alito recalled — used the lewd expression. “I will fully cop to that,” she said. A neighbor standing in the street, who asked not to be identified because of the friction on the block, said he heard her say the word too.

To document the incident, the Badens called the police shortly afterward — they did not mention the vulgar expression — and recorded the conversation.

“It’s very hard for us to come into a situation like this after it’s already settled,” the officer on the line said, explaining that the matter didn’t warrant an immediate response. “Next time that happens, you’re welcome to call us back out there, we’ll see if we can get there to see what’s going on ourselves.”…

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“Time to Close the Hatch Act’s Escape Hatch”

conflict of interest laws, ethics investigations

Hampton Dellinger for Politico:

Since the Hatch Act was passed in 1939, government workers have faced strict limits on their political activity. And rightly so. Federal employees should be on the job for the public good, not partisan ends. Violators can be reprimanded, fined and even barred from federal service.

While the Hatch Act is broad on paper, a loophole has emerged in practice: senior White House personnel (including assistants to the president and others deemed commissioned officers) aren’t being subjected to the law’s full enforcement. Today, that changes.

I was recently nominated and confirmed to lead the Office of Special Counsel, the independent agency responsible for enforcing the Hatch Act for millions of federal workers. And after a careful review of past and present policies, I’m updating my agency’s enforcement approach to put an end to such differential treatment.

OSC brings Hatch Act violations to the Merit Systems Protection Board, an independent and quasi-judicial body, and the board can impose a range of sanctions if it determines the rules were broken.

But, in the past, OSC has declined to bring MSPB cases against White House officials. Instead, OSC has left the question of whether punishment should be imposed to the sole discretion of the president. This distinction creates separate and not automatically equal systems of accountability for violators, one where an independent adjudicator (the MSPB) can impose sanctions and another where it is left to the president to dole out — or not — any consequences….

And while I have great respect for the Department of Justice’s Office of Legal Counsel, I do not believe (as my office has suggested in recent years) that a 1978 DOJ opinion assessing draft legislation should be considered sufficient support for OSC to unequivocally exempt White House staff from the same Hatch Act enforcement regime other federal workers face.

As a result, I am announcing that prior OSC statements that White House officials cannot face Hatch Act enforcement in the same way other federal civilian employees do are no longer in effect. It is time to close the Hatch Act’s escape hatch….

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“Ethics panel finds ‘substantial evidence’ Rep. Santos violated federal laws”

ethics investigations

WaPo:

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.”

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ELB Podcast 5:3: The Trump Prosecutions, the First Amendment, and Election Interference (Genevieve Lakier and Eugene Volokh)

ELB Podcast, election subversion risk, ethics investigations, First Amendment theory

New ELB Podcast:

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.

You can subscribe on Soundcloud, Apple Podcasts, and Spotify.

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“Indictment paints tale of Chinese interests and 2016 Trump campaign”

ethics investigations

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.”

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Justice Alito’s Bad Textualism Extends to His Mangling of Words to Justify Not Reporting a Seat on a Private Jet Paid for by a Billionaire Litigant

conflict of interest laws, ethics investigations, statutory interpretation, Supreme Court

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.

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“Judicial activist directed fees to Clarence Thomas’s wife, urged ‘no mention of Ginni’”

ethics investigations, Supreme Court, Voting Rights Act

WaPo reports:

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.

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“As First Republic Bank faltered, five members of Congress dumped their personal stock investments”

ethics investigations

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.

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