Accusing a Senate committee of attempting to “embarrass and harass” Supreme Court Justice Clarence Thomas, a private lawyer told the panel Tuesday that it has no power to investigate the jurist and no power to impose an ethics code on the Court or the Justices.
In a seven-page, highly detailed “confidential” letter that became public, an attorney for Justice Thomas’s friend and sometime benefactor – Texas billionaire Harlan Crow – offered a litany of constitutional arguments against any further probing of the relationship of Thomas and Crow by the Senate Judiciary Committee.
The author of the letter is Michael D. Bopp, a partner at Gibson Dunn, a prominent Washington, D.C., law firm. Responding to letters by the committee to Crow, asking for details of his ties to Justice Thomas, Bopp said the firm represents Crow and several of his business firms.
The letter, clearly marked confidential, was made public in a news story by Bloomberg News reporter Emily Birnbaum. The seven pages were posted on Twitter, giving access to any user of that social media platform.
The full text of the letter can be found at this link:
Here is one of the most assertive paragraphs in Bopp’s letter:
“After careful consideration, we do not believe the Committee has the authority to investigate Mr. Crow’s personal relationship with Justice Clarence Thomas. Most importantly, Congress does not have the constitutional power to impose ethics rules and standards on the Supreme Court. Doing so would exceed Congress’s Article I authority and violate basic separation of powers principles. That precludes the Committee from pursuing an investigation in support of such legislation.”
Apart from the core constitutional argument, the Bopp letter contends that the Judiciary Committee has “ not identified a valid legislative purpose for its investigation and is not authorized to conduct an investigation of a Supreme Court Justice.” It contended that any information bearing on possible legislation can be found elsewhere.
The Judiciary Committee’s Democratic members, reacting to a series of disclosures by news organizations of expensive gifts and favors by Harlan Crow to Justice Thomas personally and to his family, have been moving energetically to get more details in pursuit of possible legislation on the Court’s ethics.
As part of that ongoing effort, the panel unsuccessfully asked Chief Justice John G. Roberts, Jr., to testify to the Committee on the subject. Roberts declined, citing a need to protect the independence of the Court and its stature under the Constitution.
The Bopp letter concedes that the Constitution gives Congress only two powers over the Supreme Court: it can define the kind of cases that the Justices have the authority to review in appeals from lower courts, and it can impeach and remove a Justice from the Court for “high crimes and misdemeanors.” The letter adds: “Neither provision authorizes the enactment of an ethics code.” The letter concedes that Congress – as it already has done so – can enact an ethics code for judges on lower courts, which were not created by the Constitution itself – as the Supreme Court was.
In arguing that the Committee lacks authority to investigate Justice Thomas’s ties to Harlan Crow and other matters in the Justice’s personal life, the Bopp letter recites a famous quotation from a 1957 Supreme Court ruling (Watkins v. United States), saying: “There is no power to expose for the sake of exposure.”
Attorney Bopp cites public comments by Democratic members of the Committee about their interest in Thomas and the Court’s ethical conduct, and asserts that the panel “attempted to launch its own ethics investigation, to expose for the sake of exposure, to embarrass and harass a specific Supreme Court Justice.”
The Judiciary Committee so far has only sent letters asking Mr. Crow and his business firms for information, and has not yet issued a formal subpoena demanding such data. It has the option of doing so. The new letter by an attorney for Mr. Crow seems to indicate that, if such a formal order were issued, he would contest it in court.
Chief Justice Roberts has noted publicly that the Court has never ruled on the constitutionality of any attempt by Congress to require the Justices to obey an ethics code, thus indicating that he and the Court at least have some doubts about it. A court fight over a Judiciary Committee subpoena as part of an investigation of Supreme Court ethics could provide just such a test case.
Whether or not such a case would be decided by the Court itself, if it got to that level, is also an open question, since the Justices would clearly have a direct interest in the outcome.