WASHINGTON, DC – Senate Democrats’ demands for conservative private citizens’ interactions with Supreme Court justices are unconstitutional, violating First Amendment and equal protection rights, according to lawyers representing Leonard Leo, co-chairman of the Federalist Society.
Partisan Democrats on the Senate Judiciary Committee have been pursuing conservative Supreme Court justices – but only conservative justices – for years. But now Democrats are targeting conservative private citizens, with Chairman Richard Durbin (D-IL) and Sen. Sheldon Whitehouse (D-RI) leading the charge.
In the latest salvo, Durbin and Whitehouse fired off a letter on July 11 to Leo, requesting that he provide the committee with information about his interactions with Supreme Court justices.
Lawyers representing Leo responded with a letter of their own on July 25, explaining that they “believe that your inquiry exceeds the limits placed by the Constitution on the Committee’s investigative authority.”
Attorney David Rivkin begins:
Your investigation of Mr. Leo infringes two provisions of the Bill of Rights. By selectively targeting Mr. Leo for investigation on a politically charged basis, while ignoring other potential sources of information on the asserted topic of interest who are similarly situated to Mr. Leo but have different political views that are more consistent with those of the Committee majority, your inquiry appears to be political retaliation against a private citizen in violation of the First Amendment. For similar reasons, your inquiry cannot be reconciled with the Equal Protection component of the Due Process Clause of the Fifth Amendment. And regardless of its other constitutional infirmities, it appears that your investigation lacks a valid legislative purpose, because the legislation the Committee is considering would be unconstitutional if enacted.
Democrats’ shocking letter veers into new territory. Top leaders among the foremost national legal organizations interact regularly with federal judges, including Supreme Court justices. Judges have personal relationships just like other people do, and many of them come from circles where they were prominent members of those organizations. Many conservative judges were Federalist Society members, just like many liberal judges were members of liberal organizations like the American Civil Liberties Union (ACLU).
Famously, the late arch-liberal icon, Justice Ruth Bader Ginsburg, was the executive director of the ACLU, and had argued ACLU cases before the Supreme Court. She also continued socializing with ACLU leaders throughout her long tenure as a judge, as she continued ruling on a host of issues the ACLU litigated before the Supreme Court, including abortion, restricting the place of religion in public places, and LGBT rights.
That is all perfectly normal. That relationship reflected Ginsburg’s view of the law. It was no surprise that many of her friends believed the same things. And no one accused her of changing her vote to support those friends because her liberal views were well-known, and that is how she voted.
Because those organizational leaders the justices talk with are private citizens, their personal social interactions with government officials – including federal judges – have never been considered appropriate topics of investigation by Congress.
Until Durbin and Whitehouse sent Leo their letter on July 11.
“Mr. Leo is entitled by the First Amendment to engage in public advocacy, associate with others who share his views, and express opinions on important matters of public concern. Indeed, expressive activity of this kind is afforded the greatest protection possible,” Rivkin explained, citing Supreme Court precedent. “Yet Mr. Leo has, for years, been the subject of vicious attacks by members of Congress, specifically including members of the Committee majority, because of how he chooses to exercise his rights.”
As one example, the lawyer noted that Whitehouse has publicly called Leo “a little spider … at the center of the dark money web.”
“This campaign of innuendo and character assassination has now moved beyond angry speeches and disparaging soundbites,” the attorney continued, declaring that Durbin and Whitehouse “have now wielded the investigative powers of Congress to harass Mr. Leo for exercising his First Amendment rights. That transforms what has to this point been a nuisance occasioned by intemperate rhetoric into a constitutional transgression.”
Durbin and Whitehouse have long targeted conservative justices, especially Clarence Thomas and Samuel Alito, and now are attempting to pry into Leo’s decades-long personal friendship with Thomas, Alito, and other judicial conservatives on the court.
The letter sets forth what the courts have held constitutes illegal government retaliation for free speech, protections the courts have specified fully apply to congressional investigations and demands. This includes the Supreme Court’s 1957 Watkins case, where the court held, “The mere summoning of a witness and compelling him to testify, against his will, about his beliefs, expressions or associations is a measure of governmental interference.”
“It seems clear that this targeted inquiry is motivated primarily, if not entirely, by a dislike for Mr. Leo’s expressive activities,” Rivkin observes, giving a number of details of the accusations against Leo, and continuing to cite legal precedents forbidding such retaliation by government.
“This conclusion is confirmed by the targeted and one-sided nature of the investigation,” the letter continued, explaining that Senate Democrats have not shown similar interest in liberal justices going on trips paid for by wealthy liberals, such as liberal former Justice Stephen Breyer, who took more than 225 such trips.
Aside from free speech, the Constitution’s guarantee of equal protection of the law forbids the “discriminatory exercise of government power” such as the one reflected by Durbin and Whitehouse’s demand, Rivkin’s letter explained, unpacking a second line of legal precedents that require the government to treat both sides of the philosophical divide equally.
“It is hard to conclude that the disparate treatment to which Mr. Leo is being subjected is the result of anything other than sheer vindictiveness motivated by politics,” said Rivkin.
But there is a third reason Senate Democrats’ demand is unconstitutional, according to the letter: “Congress cannot conduct an investigation in connection with legislation that it cannot constitutionally enact.”
The letter criticizes Democrats’ pending legislation to impose what they call an ethics code upon Supreme Court justices, noting that the Supreme Court is a separate branch of government that is not subject to congressional supervision any more than the Supreme Court can supervise Congress.
“And as Chief Justice Roberts has made clear, the Supreme Court has never acquiesced to Congress’s assertion of authority over the Court’s ethics standards, and Congress of course cannot expand its own power under the Constitution by passing an unconstitutional statute,” the letter added.
“The Senate’s investigative authority should, as a matter of both law and prudence, be exercised consistent with the freedoms guaranteed to every American by the Bill of Rights,” Leo’s attorney concludes. “Turning the Senate into a platform of irresponsible sensationalism where an individual’s right to hold unpopular beliefs and right of independent thought are disregarded is a course that we know from past experience can serve no good end.”
No word yet on how Durbin and Whitehouse will proceed.
Below is the letter from Leo’s attorneys to Durbin and Whitehouse:
Ken Klukowski is a Breitbart News senior legal contributor.
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