Harlan Crow’s argument for refusing to cooperate with Senate investigators is feeble: legal expert

Harlan Crow is at the center of an ethics scandal over lavish gifts to Supreme Court Justice Clarence Thomas, and the conservative billionaire isn't offering up much in the way of a legal argument for declining to cooperate with a Senate inquiry, legal analyst Kim Wehle writes for The Bulwark.

Crow’s gifts to Thomas and his wife, Ginni, which included luxury vacations, are the subject of a ProPublica investigative report that have prompted renewed calls for Supreme Court ethics reform.

Senate Judiciary Committee Chair Dick Durbin issued a statement last month calling for “the full extent of Mr. Crow’s and the corporations’ gifts to Justice Thomas, what other individuals were able to gain special access to Justice Thomas and any other Justices via the travel and lodging provided, and whether those individuals had interests before the Supreme Court.”

Crow claims the request to review the gifts is unconstitutional and has declined to comply.

His attorney Michael Bopp, in a letter to responding to the committee’s request wrote that “Congress does not have the constitutional power to impose ethics rules and standards on the Supreme Court,” and that therefore the entire investigation is illegitimate.

Wehle contends that the Crow’s lawyer is making a flimsy argument.

Wehle writes that “If Bopp’s letter were filed with a federal court, it would come precariously close to violating Rule 11 of the Federal Rules of Civil Procedure, which enables courts to impose sanctions on lawyers for advocating excessively frivolous arguments.”

Bopp in his letter argues that the Constitution restricts Congress from applying the types of ethical rules and standards already exist or lower court on the Supreme Court.

Wehle writes that “The argument is that the Supreme Court is created by the Constitution expressly, whereas the Constitution gives Congress the power to create the lower federal judiciary, which it did with the first Federal Judiciary Act of 1789, so Congress can only regulate the courts that it actually creates in the first place.”

Wehle believes that Bopp’s argument that the Supreme Court is “so constitutionally sacrosanct” that it is above being accountable to Congress is historically inaccurate.

“Crow is rebuffing a legitimate inquiry into an ethics scandal that directly involves himself,” Wehle writes.

“Given the sobering separation of powers concerns at stake, Crow’s contempt of the U.S. Congress is truly contemptible.”

Read the full article here.