Harlan Crow's Lawyers Double Down On Genius Strategy To Invite Contempt Charges

(Photo by Drew Angerer/Getty Images)

Gibson Dunn got mercilessly mocked for its first letter informing the Senate Judiciary Committee that it would rather not talk about whether its client, Harlan Crow, acted as Clarence Thomas's personal ATM machine for years. The legal arguments raised in the letter signed by partner Michael D. Bopp were so flimsy that Georgetown constitutional law scholar Josh Chafetz wrote, "I hope the Gibson Dunn lawyers who worked on this are suitably embarrassed."

The letter presented a cavalcade of shoddy, half-formed, out-of-context argumentation that somehow managed to never once mention either of the two statutes at issue. Unsurprisingly, the Judiciary Committee pointed all of this out.

Now Gibson Dunn is back! In a letter reproduced below, Gibson Dunn mildly concedes that Bopp will deign to speak with Senate staffers. But they aren't ready to eat crow entirely, and took another opportunity to string together some caselaw in support of Crow's meritless assertion that the Senate Judiciary Committee lacks the authority to probe Thomas's failure to comply with existing disclosure statutes.

And they’re really hoping no one bothers to look up these case cites because… they don't really help Crow's case.

We write on behalf of Harlan Crow in response to your letter of May 26, 2023 (the "May 26 Letter") responding to our May 22, 2023 letter ("Response"), which raised serious concerns about your original request of May 8, 2023 for information regarding Mr. Crow's friendship with Justice Clarence Thomas.

[Narrator voice]: They were not serious.

While the concerns we expressed in our Response about the Committee's investigation remain, 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.

Remember, the original argument was that the Senate had no role "in formulating legislation concerning our federal courts system" at all. Their "serious" concerns about the role of the legislative branch subtly shifted from zero to "important."

This should end the discussion. Gibson Dunn should finish that paragraph with "and would welcome a discussion with your staff about when to schedule Mr. Crow's voluntary production of materials and testimony before we have to get a subpoena and inevitable contempt of Congress referrals in here."

But it does not.

Instead, we embark on a journey to the nexus of supercilious and disingenuous. In case you’re wondering, Gibson Dunn will still refuse to address by name the specific statutes involved here, but this time they will acknowledge that the laws at least exist. PROGRESS!

The fact that Congress has enacted ethics legislation previously––a point on which the May 26 Letter relies heavily––is no answer to our concerns. "[P]ast practice does not, by itself, create power." Medellin v. Texas, 552 U.S. 491, 532 (2008) (quotations omitted).

There are no quotations omitted in there. Unless you’re counting the quotation marks they failed to include because this quote is itself a completely lifted quote from Dames & Moore v. Regan. There's a reason Gibson Dunn elides the original source of the quote, because when the Dames & Moore Court wrote those words, they were followed by a comma and would go on to say, "… but ‘long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent," citing an even older case. Even in Medellin, the Court's ruling didn't turn on past practice not creating power, but the fact that the act in question was "not supported by a ‘particularly longstanding practice.'"

By contrast, the ethics legislation at issue in this dispute date back to 1978 and the justices have — Thomas's lapses aside — complied since then.

Thus, Congress may undertake measures to facilitate Article III's vesting of judicial power in the Supreme Court, such as by fixing the number of Justices who serve on the Court above the constitutional minimum. See U.S. Const. art. III, § 1; U.S. Const. art. I, § 3, cl. 6; id. § 8, cl. 18. But fixing the number of Justices is, as this Committee has recognized in the past, done "for purely administrative purposes." S. Rep. No. 75-711 at 12 (1937). It is a ministerial measure to help execute the vesting of judicial power. It is not a regulation of the exercise of judicial power, which the Constitution reserves to the judiciary. See Stern v. Marshall, 564 U.S. 462, 483 (2011) ("[T]he judicial Power of the United States can no more be shared with another branch than the Chief Executive, for example, can share with the Judiciary the veto power." (quotations omitted))

Putting aside whether the Roberts Court has de facto seized veto power, this is chicken-and-egg level intellectual masturbation. Is a legal requirement to disclose gifts, and then to potentially recuse from cases involving a conflict, a provision to "help execute the vesting of judicial power" or "a regulation of the exercise of judicial power"? One could say "violating the ethical code divests the judge of judicial power as an administrative matter" or one could say "violating the ethical code prevents a judge from exercising judicial power." Resolving that distinction matters here and the fact that ethical codes are "administrative" matters in every other context would seem to tilt in favor of the former.

Don't worry, they have an answer for that!

Nor is an ethics standard a "prerequisite" to the Court's exercise of judicial power. Patchak v. Zinke, 138 S. Ct. 897, 907 (2018).

This is a trend in both Gibson Dunn letters: citing cases to manufacture negative implications. Zinke said "a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power." That's the statement they’re plucking "prerequisite" out of. From this floating hook they imply some sort of expressio unius est exclusio alterius that because jurisdiction is a prerequisite… ethical codes must not be? That's not how any of this works. The case doesn't whisper on the question of whether an ethics standard — or anything else for that matter — would be a prerequisite to anything.

That means an ethics standard of any kind, imposed on the Court by Congress, would be unlawful. See United States v. Morrison, 529 U.S. 598, 607 (2000).

Morrison?!?!? They’re citing federalism cases for this? Why not throw in "this would discriminate against a branch of government per Brown v. Board" while you’re at it because it's about as legally sound. When it comes to crafting a compelling legal argument, there is such a thing as subtraction by addition and this is a great example.

Now put on your cleats because we’re embarking on the slippery slope:

The independence of the Court is exactly what is at issue here. If Congress were empowered to enact ethics standards targeting the Justices, that power could readily be used to coerce or harass them for exercising the judicial power in ways deemed objectionable by legislators. An ethics standard imposed by Congress on the Justices would loom over the Court's independence as an implicit and omnipresent threat that the political branches may, at any time, "punish the Justices whose opinions [they] resent." S. Rep. No. 75-711 at 12 (1937).

The cited report is about FDR's threat to expand the membership of the Supreme Court… an act that literally everyone agrees would be constitutional (even if it might be unwise). Is there an effort to explain why "don't take hundreds of thousands in undisclosed graft from parties before the court" or even why "the Supreme Court must abide by the same rules imposed on lower courts" would result in coercion or harassment? Nope!

Likewise, any enforcement mechanism for such an ethics standard would further undermine the constitutionally mandated independent role of the Supreme Court. A code enforced by the Judicial Conference of the United States, for example, would impermissibly invert the hierarchy of the judicial department, placing lower court judges in a supervisory role over the Supreme Court.

Not to school the lawyers who just did such an admirable job mucking up the concept of "administrative," but the "hierarchy" of the judicial department is a matter of substance not administration. The Judicial Conference already involves district judges in a position to pass judgment on the actions of circuit judges. In fact, they district judges have some measure of administrative authority when it comes to the Supreme Court, which is why a committee of the Judiciary Conference chaired by the Chief of the Western District of Kentucky heard ethical complaints against Clarence Thomas in 2012 before dismissing them as inadvertent.

And a congressionally mandated code that was meant to be enforced by the Justices themselves would be a usurpation by Congress—a command to the Justices to exercise in a particular way an inherent judicial power that is reserved exclusively to the Justices’ discretion. See Patchak, 138 S. Ct. at 905 ("The separation of powers, among other things, prevents Congress from exercising the judicial power.").

Again begging the question — why is an ethical code a matter of exercising judicial power instead of a concededly permissible matter of vesting? They just keep jamming those inapposite cases into this letter hoping to numb the Committee into assuming this shaky premise.

If the arguments Crow mustered to claim that Congress has no legitimate legislative purpose to impose ethical standards are bad, wait until you get a load of his argument that Congress has no legitimate legislative purpose to investigate Clarence Thomas's failure to comply with ethical laws already in place for 45 years.

The Committee's requests also cannot withstand constitutional scrutiny for an additional reason. Because its requests are aimed at obtaining private information about a sitting Justice of the Supreme Court, they squarely implicate the separation of powers, which means the Committee's investigation must satisfy a heightened standard in order to establish a valid legislative purpose for seeking the requested information. But the Committee makes no effort to meet that heightened standard.

You know… impeachment is a legitimate legislative purpose. While the House would have to initiate any impeachment and there's zero chance of that happening in the near future, that doesn't make it any less legislative.

In all honesty, it's shocking that Gibson Dunn wanted to pull this thread.

So Crow and Gibson Dunn want to stretch out the FA half of the equation. Is the Senate preparing to bring the FO component? Per NBC News:

Wyden warned that the committee could issue a subpoena, saying, "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."

Well then.

In the meantime, at least Gibson Dunn is collecting some nice billable hours out of these letters, because they’re getting nowhere fast substantively.

Billionaire Harlan Crow's lawyer agrees to speak with Senate panel probing Clarence Thomas gifts [NBC News]

Earlier: Harlan Crow's Lawyers Tell Senate They’re Going To Take Their Chances With ContemptClarence Thomas Skated On Ethics Complaints In 2012… Meaning He Definitely Already Knew The Rules

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Biglaw, Courts, Gibson Dunn, Government, Harlan Crow, Legal Ethics, Supreme Court

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