Leonard Leo won't comply with Senate Democrats' subpoena in Supreme Court ethics probe

Washington — Conservative judicial activist Leonard Leo said he will not comply with a subpoena issued by Democrats on the Senate Judiciary Committee as part of their ongoing investigation into ethics practices at the Supreme Court.

The subpoena was issued to Leo by Judiciary Committee Chairman Dick Durbin on Thursday, months after Democrats on the panel voted to authorize it. Durbin has been looking into ethics issues at the high court for roughly a year following a series of reports that revealed Justice Clarence Thomas took luxury trips with a Republican megadonor, Harlan Crow, and did not disclose them. Crow, a Texas real estate developer, did not receive a subpoena from Durbin, a spokesman for Crow said.

"Mr. Leo has played a central role in the ethics crisis plaguing the Supreme Court and, unlike the other recipients of information requests in this matter, he has done nothing but stonewall the committee," Durbin said in a statement. "This subpoena is a direct result of Mr. Leo's own actions and choices."

Durbin, an Illinois Democrat, said that Leo's "outright defiance left the Committee with no other choice but to move forward with compulsory process."

Leo's lawyer, David Rivkin, told Durbin in a letter Thursday that his client is not complying with the "unlawful and politically motivated subpoena" he received. 

"I am not capitulating to his lawless support of Senator Sheldon Whitehouse and the left's dark money effort to silence and cancel political opposition," Leo, who has played a crucial role in the confirmations of several of the conservative Supreme Court justices, said in a statement. Leo is the co-chairman of the conservative Federalist Society.

A Judiciary Committee aide said that in the event of noncompliance, there are options available to the Senate to enforce the subpoena.

Sen. Lindsey Graham, the top Republican on the panel, criticized Democrats for issuing the subpoena. The committee's GOP minority has argued Democrats' November action was unsuccessful because they failed to follow Senate and committee rules, and the committee lacked a quorum to conduct business when the vote to authorize the subpoenas was held. 

"The world is on fire, the border is broken, and the Biden Administration is completely incompetent on multiple levels. Yet the Democrat-led Senate wants to subpoena a private citizen for political clickbait," he said in a statement. "The subpoena is illegal, the underlying allegations are frivolous and I hope the American people are fed up with this. I know I am."

Senate Democrats' investigation

Democrats on the panel voted in late November to approve the subpoenas to Leo and Crow, whose decades-long relationship with Thomas has come under scrutiny.

It's unclear why the subpoena wasn't issued to Leo until months after it was approved by all 11 Democrats on the Judiciary Committee. 

Republicans have lambasted their Democratic colleagues for pursuing the demands for information, which they claimed was part of an effort to undermine the Supreme Court by targeting private citizens. GOP senators have also denounced Democrats' investigation into ethics issues at the high court as an attack on the court's integrity following blockbuster decisions on abortion, gun rights and affirmative action.

Democrats are seeking documents about gifts, trips and lodging provided to any member of the high court. Leo and Crow's involvement in luxury trips provided to Thomas and Justice Samuel Alito were revealed last year.

The Judiciary Committee launched its probe in April 2023 following a series of reports from the investigative news outlet ProPublica that revealed trips Thomas took aboard Crow's private plane and yacht, and luxury vacations the justice accepted from Crow over their 25-year friendship.

Thomas did not disclose the travel on his annual financial disclosure forms, and said in response to the revelations that he did not believe he had to do so under exemptions for personal hospitality.

Alito, meanwhile, traveled to Alaska for a luxury fishing trip in 2008 aboard a private jet provided by GOP donor Paul Singer, and accepted lodging from Robin Arkley, the owner of a California mortgage company and another GOP donor. Alito also did not disclose the trip, but refuted that it should have been reported, also citing exceptions for personal hospitality. 

Following the reports of Thomas and Alito's trips, the Judiciary Committee requested information from Crow, Leo and Arkley. Leo has repeatedly declined the committee's request, and his lawyer told the panel in a letter Oct. 19 that its inquiry lacked a valid legislative purpose.

Crow offered to provide the Judiciary Committee with limited information, though it did not satisfy Senate Democrats.

Republicans have defended Thomas and Alito and accused Democrats of unfairly focusing on them while ignoring revelations from the Associated Press that Justice Sonia Sotomayor's court staff pushed public institutions to purchase her books, and that the justice declined to recuse herself from copyright cases before the court that involved her book publisher. Justice Neil Gorsuch also did not step aside in a case involving the publisher of his 2019 book.

Thomas' ties to Crow in particular created mounting pressure on the Supreme Court to adopt a binding code of ethics. Last summer, the Judiciary Committee advanced legislation along party lines that would require the Supreme Court to adopt an enforceable set of ethics rules. The court announced in November that it had adopted for the first time a formal code of conduct, though it does not include an enforcement mechanism.