    [Senate Hearing 118-38]
    [From the U.S. Government Publishing Office]

                                                             S. Hrg. 118-38

                       REVIEW OF FEDERAL JUDICIAL ETHICS
                      PROCESSES AT THE JUDICIAL CONFERENCE
                              OF THE UNITED STATES

    =======================================================================

                                    HEARING

                                   before the

                   SUBCOMMITTEE ON FEDERAL COURTS, OVERSIGHT,
                       AGENCY ACTION, AND FEDERAL RIGHTS

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 FIRST SESSION

                                   ----------

                                  MAY 17, 2023

                                   ----------

                              Serial No. J-118-17

                                   ----------

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                                            S. Hrg. 118-038

                       REVIEW OF FEDERAL JUDICIAL ETHICS
                      PROCESSES AT THE JUDICIAL CONFERENCE
                              OF THE UNITED STATES

    =======================================================================

                                    HEARING

                                   before the

                   SUBCOMMITTEE ON FEDERAL COURTS, OVERSIGHT,
                       AGENCY ACTION, AND FEDERAL RIGHTS

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  MAY 17, 2023

                                   __________

                              Serial No. J-118-17

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                     U.S. GOVERNMENT PUBLISHING OFFICE

    52-707 PDF               WASHINGTON : 2023

                           COMMITTEE ON THE JUDICIARY

                       RICHARD J. DURBIN, Illinois, Chair
    DIANNE FEINSTEIN, California         LINDSEY O. GRAHAM, South Carolina,
    SHELDON WHITEHOUSE, Rhode Island             Ranking Member
    AMY KLOBUCHAR, Minnesota             CHARLES E. GRASSLEY, Iowa
    CHRISTOPHER A. COONS, Delaware       JOHN CORNYN, Texas
    RICHARD BLUMENTHAL, Connecticut      MICHAEL S. LEE, Utah
    MAZIE K. HIRONO, Hawaii              TED CRUZ, Texas
    CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
    ALEX PADILLA, California             TOM COTTON, Arkansas
    JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
    PETER WELCH, Vermont                 THOM TILLIS, North Carolina
                                         MARSHA BLACKBURN, Tennessee
                 Joseph Zogby, Chief Counsel and Staff Director
          Katherine Nikas, Republican Chief Counsel and Staff Director

     Subcommittee on Federal Courts, Oversight, Agency Action, and Federal
                                     Rights

                    SHELDON WHITEHOUSE, Rhode Island, Chair
    DIANNE FEINSTEIN, California         JOHN KENNEDY, Louisiana, Ranking
    RICHARD BLUMENTHAL, Connecticut          Member
    MAZIE K. HIRONO, Hawaii              CHARLES E. GRASSLEY, Iowa
    CORY A. BOOKER, New Jersey           MICHAEL S. LEE, Utah
    ALEX PADILLA, California             TED CRUZ, Texas
    PETER WELCH, Vermont                 THOM TILLIS, North Carolina
                                         JOSH HAWLEY, Missouri
                     Annie Owens, Democratic Chief Counsel
                   Nathan Williams, Republican Chief Counsel

                                C O N T E N T S

                                  ----------

                              MAY 17, 2023, 2 P.M.

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
      Island                                                              1
    Kennedy, Hon. John, a U.S. Senator from the State of Louisiana...     2
    Durbin, Hon. Richard J., a U.S. Senator from the State of
      Illinois.......................................................     5

                                   WITNESSES

    Witness List.....................................................    19
    Wolf, Hon. Mark L., Senior U.S. District Judge for the District
      of Massachusetts, Boston, Massachusetts........................     7
        prepared statement...........................................    20
          Attachment I...............................................   117
          Attachment II..............................................   119
          Attachment III.............................................   132
          Attachment IV..............................................   213
          Attachment V...............................................   251
          Attachment VI..............................................   512
          Attachment VII.............................................   532
          Attachment VIII............................................   600
          Attachment IX..............................................   607

                    MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    Submitted by Senator Whitehouse:

        2023-04-21, letter to Judge Mauskopf as to Financial
          Disclosure Committee.......................................   614
        2023-04-27, letter to Judge Mauskopf as to Justice Thomas'
          2011 disclosure............................................   616
        2023-05-05, letter to Judge Mauskopf as to Financial
          Disclosure Committee.......................................   621
        2023-05-15, letter from Judicial Conference of the United
          States as to Justice Thomas' 2011 disclosure...............   631
        Alliance for Justice, statement, May 17, 2023................   662
        FFRF Action Fund, statement..................................   667
        Roth, Gabe, statement, May 17, 2023..........................   669

                       REVIEW OF FEDERAL JUDICIAL ETHICS
                      PROCESSES AT THE JUDICIAL CONFERENCE
                              OF THE UNITED STATES

                                  ----------

                            WEDNESDAY, MAY 17, 2023

                          United States Senate,
             Subcommittee on Federal Courts, Oversight,
                     Agency Action, and Federal Rights,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2 p.m., in
    Room 226, Dirksen Senate Office Building, Hon. Sheldon
    Whitehouse, Chair of the Subcommittee, presiding.
        Present: Senators Whitehouse [presiding], Hirono, Kennedy,
    and Lee.
        Also present: Chair Durbin.

             OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
             A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

        Chair Whitehouse. Let me call to order this hearing of the
    Judiciary Committee's Subcommittee on Federal Courts,
    Oversight, Agency Action, and Federal Rights. We'll proceed
    with opening remarks from myself, from Ranking Member Kennedy,
    and we have the good fortune that the Chairman of the full
    Committee, Senator Dick Durbin is with us, and he will offer
    opening remarks after Senator Kennedy. We'll then proceed to
    the comments that you have prepared, Judge Wolf, and your full
    statement and exhibits attached to it will be made a part of
    the record, so you don't need to concern yourself with that.
    And then we'll have question and answers with the Committee
    Members. So let me welcome you and get underway.
        One month ago, Congressman Hank Johnson and I wrote to the
    Judicial Conference of the United States asking it to look at
    recent reports that Justice Clarence Thomas violated the Ethics
    in Government Act by failing to disclose gifts of travel and
    luxury vacations provided by a right-wing billionaire. The
    Judicial Conference's responsibilities under that law are quite
    clear. If there is, and I quote, ``Reasonable cause to
    believe,'' close quote, that Justice Thomas willfully failed to
    file, then it must refer him to the Justice Department for
    further investigation.
        The Judicial Conference is a statutory body and the Ethics
    in Government Act is a Federal statute. So this is all very
    much Congress' business. The Judicial Conference has a
    Committee on Financial Disclosure. Our request about the recent
    Thomas allegations was sent there. I've urged that committee to
    act with dispatch and to provide us information to understand
    how the process is handled. This is not a first. Believe it or
    not, we've been in nearly this exact situation before.
        Back in 2011, the nonprofit group Common Cause uncovered
    that Justice Thomas hadn't reported years of his wife's income
    paid by a right-wing, dark-money group. The New York Times
    reported that Justice Thomas also had not disclosed gifts of
    free private jet and yacht travel from the same right-wing
    billionaire. The same kinds of undisclosed gifts from the same
    right-wing billionaire that were revealed last month.
        Then, as now, the Ethics in Government Act required Justice
    Thomas to report these things. And then, as now, the question
    was whether there was reasonable cause to believe that Justice
    Thomas' omissions were willful. In which case, then, as now,
    referral to the Attorney General is required by law.
        So the Judicial Conference actions then, are the prequel to
    what is in front of it now. More than a decade later, we're
    just now getting answers to important questions. Over the past
    few weeks, I've asked the Judicial Conference, ``Who was on
    that committee? What was its process and rationale? What kind
    of evidence did it consider? And what were the rules and
    procedures under which all of this took place?''
        The Judicial Conference's recent response, and I will enter
    the Judicial Conference's response and the three letters of
    mine to which it was responsive, into the record, is a helpful
    start.
        [The information appears as submissions for the record.]
        Chair Whitehouse. But there is more that we need to know
    about those events. We'll hear today from someone who can help
    us with pertinent insight into what the Judicial Conference and
    its Committee on Financial Disclosure did back in 2011. Judge
    Mark Wolf was a member of the Judicial Conference in 2011 and
    2012, and his experience on the Judicial Conference provides
    special insight into its normal operations and how the
    Conference handled the incidents involving Justice Thomas.
        Congress has a role in making sure that our courts are
    administering Federal ethics laws fairly and as intended. If
    they aren't, we need a robust record of what has gone wrong and
    what new laws might be needed to fix it. Judge Wolf's testimony
    will help us build that thoughtful record, and we are grateful
    to him for appearing today. Senator Kennedy, then Senator
    Durbin.

                OPENING STATEMENT OF HON. JOHN KENNEDY,
               A U.S. SENATOR FROM THE STATE OF LOUISIANA

        Senator Kennedy. Thank you, Mr. Chairman. The assault comes
    in waves. The current assault on the United States Supreme
    Court as an institution started on May 4th, 2020. I remember it
    like it was yesterday. It started on the steps of the United
    States Supreme Court. The Democratic Leader of the United
    States Senate said, and I quote, ``I want to tell you Gorsuch,
    I want to tell you Kavanaugh, you have released the
    whirlwind,'' the Democratic Leader of the United States Senate
    said, ``And you will pay the price. You won't know what hit you
    if you go forward with these awful decisions.''
        Now, we're supposedly here today to hear the latest chapter
    in the fairy tale of Supreme Court corruption. As I implied,
    this is a continued effort to undermine a United States Supreme
    Court that isn't ruling the way that some of my Democratic
    colleagues want. How do we know today's outrage is unjustified?
    Well, at least four of my Democratic colleagues, and I suspect
    many Republicans on this Committee, have done exactly what
    Justice Thomas did: amend their financial disclosures.
        I'm willing to stipulate that, like Justice Thomas, my
    colleagues have done nothing wrong intentionally. Amendments
    are pretty commonplace. According to the Judicial Conference,
    about which you will probably hear a lot today from this
    witness, Justice Thomas in 2011, immediately amended his
    financial disclosures to include his wife's employers for a
    number of years. That's it. That's all, folks. That's what this
    is all about. Of course, everybody knew at the time that Mrs.
    Thomas worked in politics, and everybody knew at the time that
    Mrs. Thomas works in policy.
        So it's pretty unclear what the bombshell is here. Maybe
    because there isn't one. Justice Thomas either misunderstood or
    misinterpreted, I don't know, the disclosure obligations.
        [Poster is displayed.]
        Senator Kennedy. And so in 2011, he filed an amendment,
    which the law calls for, to tell us what we already knew. The
    Judicial Conference has a Committee on Financial Disclosure.
    The Judicial Conference's Committee on Financial Disclosure
    cleared Justice Thomas. Did I mention they cleared him?
        [Poster is displayed.]
        Senator Kennedy. They found no evidence. None. Zero. Nada.
    Zilch. They found no evidence that he acted willfully or
    improperly.
        [Posters are displayed.]
        Senator Kennedy. And as the Judicial Conference told our
    Chairman just two days ago, the Conference's Committee on
    Financial Disclosure cleared Justice Thomas not once, not
    twice, not three times, but four times at four separate points
    under the leadership of two different judges who served as
    chairman of that committee. Now, that ought to be the end of
    the story. But it turns out that for the last dozen years, a
    lone Federal judge who is with us today has been obsessed with
    complaining that the Judicial Conference got it wrong.
    Obsessed. Perhaps he thinks they are crooks, too.
        A few data points on our witness today, Judge Wolf.
        [Poster is displayed.]
        Senator Kennedy. Number one, as a sitting Federal judge, he
    wrote in 2021 for NBC News in support of H.R. 1. This was the
    partisan Democratic bill to Federalize elections, to remove
    them from State and local government. Are Federal judges
    supposed to advocate for policy changes to current law? No. But
    Judge Wolf did.
        Number two, the Associated Press has reported that, quote--
    I'm going to quote now, these are AP's words, not mine, ``A
    longtime FBI informant believed that Wolf had leaked
    information to the mob when he worked for the U.S. Attorney's
    Office,'' end quote. Then, as a judge, he refused to recuse
    himself in a case involving the mob.
        Number three, a few years later, Federal prosecutors
    accused Judge Wolf of entertaining a defense witness in a
    murder trial--are you kidding me? A highly unethical move,
    that's an understatement--at Martha's Vineyard, which led to
    his recusal to avoid the potential for appearing biased after
    he'd been 15 years into the case. Talk about an inefficient use
    of scarce judicial resources. Now, this is the Judge Wolf whom
    we're going to hear from today. A self-described nonpartisan
    interested in fair judicial administration.
        The proceedings of the Judicial Conference are highly
    confidential. The proceedings of its Financial Disclosure
    Committee are confidential, too. Multiple advisory opinions and
    even the Judicial Code of Conduct say that a sitting judge
    should only testify before a partisan body if they are an
    expert. And yet Judge Wolf is going to tell us all about them,
    even though he didn't even sit on the committee that
    investigated Justice Thomas.
        As the Judicial Conference emphasized, professional,
    nonpolitical career staff of the Judicial Conference's
    Financial Disclosure Committee viewed Justice Thomas' amended
    disclosure and called it what it was, routine. But the judgment
    from nonpartisan staff and from the committee's Democrat, not
    Republican, but Democrat-appointed head didn't satisfy Judge
    Wolf. He continued on, and he eventually tried to force a vote
    at the Judiciary Conference.
        Obsessed. Why? For the same reason that some Democrats keep
    holding public smear campaigns like this one. Judge Wolf wasn't
    getting his way from the head of the Judicial Conference or
    from Chief Justice Roberts himself. Ethics experts and fellow
    judges agreed that there was no there, there. But maybe the
    press, maybe the press could be convinced that even when
    there's no smoke, there's fire. We've never seen that happen in
    Washington. Apparently, someone, someone convinced the press to
    swallow Judge Wolf's line.
        As of 2 weeks ago, you can read the play-by-play of how
    Judge Wolf repeatedly and unsuccessfully pressed the Judicial
    Conference to bend to his will in a Bloomberg article written
    more than a decade after the fact. By the way, the Judicial
    Conference says that, quote, ``Judges should not discuss
    pending or impending cases, confidential information, or
    controversial matters with the media.''
        The media revelation is interesting, not because it
    demonstrates any wrongdoing on the part of either Justice
    Thomas or Chief Justice Roberts, none. But because it implies
    wrongdoing on the part of its possible source--possible source.
    The information leaked to this reporter is highly confidential,
    and if, if it was leaked by a sitting judge, it was unethical.
    In other words, this hearing--we're here to focus on potential
    ethical lapse. Could it be that this hearing is only possible
    because of a clear ethical lapse?
        I wish some of my Democratic friends, and they are my
    friends, and Judge Wolf were as concerned about this leak as
    they are about routine and proper disclosure amendments. And,
    by the way, anyone who wonders why appropriate confidentiality
    can be so crucial to our legal system and to the safety of the
    men and women on the bench, can give Justice Kavanaugh a call.
    Just ring him up. Leaking confidential information to affect an
    outcome or get your way is always wrong, and sometimes it's
    dangerous.
        So why does the nauseously woke left continue to employ
    these tactics? That's a fair question. We got the answer in New
    York Magazine. New York Magazine told us 2 days after the
    Bloomberg piece on Judge Wolf's advocacy was published. I want
    to read to you the magazine's advice, quote, ``It is therefore
    in the interest of the progressive movement to undermine the
    Court's legitimacy. It makes sense for progressives to
    publicize Thomas' obscene indulgences. But I think it's true
    that the end goal of doing so isn't to secure ethics reforms
    that will render the Supreme Court less vulnerable to
    perceptions of corruption. The point is, or at least it should
    be, to promote the perception of judicial corruption,'' end
    quote.
        If you can't control it, you burn it down. Like others,
    Judge Wolf's goal seems to me to be political. This hearing has
    been entirely structured around him--entirely--who has, as a
    supposedly nonpartisan Federal judge, endorsed partisan
    legislation, and has been the catalyst and the only witness for
    a partisan hearing. Is this witness, is Judge Wolf planning on
    launching a Super PAC next?
        So let me sum it up. More than 10 years ago, Justice Thomas
    amended his financial disclosures to include facts that
    everyone already knew, which he had inadvertently, I shouldn't
    say inadvertently, I don't know, omitted. People file
    amendments all the time. Both Democrats and Republicans on this
    Committee have repeatedly done the same thing. I don't hold
    that against them. I don't hold that against them, and neither
    should anyone here.
        This routine amendment resulted in a bureaucratic knife
    fight that Judge Wolf instigated against a Supreme Court
    Justice and the Judicial Conference. He lost resoundingly four
    times. Did I mention that? He lost four times. And here he is,
    a dozen years later to tell us all about it. Even when the
    facts vindicate the accused, the nauseously woke left can't
    help but sling mud, especially when it comes to the Supreme
    Court. If we can't control it, let's burn it down. Forget
    innocent until proven guilty. The loon wing of the left insists
    that good Justices are guilty even after they've been found
    innocent, four times. And that's the perpetual political
    carousel that brings us here today. It makes me want to gag.
        Chair Whitehouse. I thank the Ranking Member for his
    colorful remarks and turn to Chairman Durbin.

              OPENING STATEMENT OF HON. RICHARD J. DURBIN,
               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Chair Durbin. Thank you, Mr. Chairman, and thank you to
    Senator Kennedy for holding this important hearing today. I
    want to thank Judge Wolf for his willingness to testify about
    the role the Judicial Conference Committee on Financial
    Disclosure plays, or fails to play, when it comes to overseeing
    Supreme Court Justices' compliance with the Ethics in
    Government Act.
        I'd like to start by saying that Senator Kennedy, my
    friend, has identified May 4th, 2020, as the kickoff date for
    this so-called political exercise. I would like to show to my
    colleague and put in the record a copy of the letter which I
    sent, signed by Senator Leahy, Senator Whitehouse, and others,
    to Chief Justice John Roberts, dated February 13th, 2012--
    February 13th, 2012--8 years before this date in 2020.
        And what were we asking or making inquiry on? We were
    asking about information on the Code of Ethics and the Code of
    Conduct and the ethical behavior of the Supreme Court Justices,
    in particular, one whose situation had come to light, who had
    been receiving some gifts of some sort, and his wife had been
    receiving some income, which was not properly reported. So to
    say this all started on May 4th, 2020, is just plain wrong.
    I've got the letter here to prove it, and I ask consent to
    enter it into the record.
        Chair Whitehouse. Without objection.
        [The information appears as a submission for the record.]
        Chair Durbin. Let me go further and say that for more than
    a decade since sending this letter and before, I've been
    calling on Supreme Court Justices to be held, at a minimum, at
    a minimum, to the same ethical standards as every other Federal
    judge. That's the outrage that precipitated the comments by the
    Ranking Member, the notion that the Supreme Court Justices, all
    nine of them, would be held to the same ethical standards. As I
    mentioned, I started that in February 2012.
        I want to commend the Chairman, Senator Whitehouse, who has
    really done yeoman's duty in pursuing this issue long before
    the current publication by ProPublica of information that
    brings us here today. I thank him for his leadership in that,
    and I think he is appropriately chairing this Subcommittee on
    the Courts at a moment in history when he's needed now more
    than ever.
        I again urged Chief Justice Roberts, after the recent
    ProPublica revelations about luxury vacations and travel given
    to the Supreme Court Justice by billionaire Harlan Crow. I
    invited the Chief Justice on behalf of the Committee, Democrats
    in the Committee, to testify on this issue. He declined. I'm
    sorry that he did. I then called on him to rescue the
    reputation of the Court by simply taking action to respond to
    this well-documented outrage.
        For anyone, including my colleagues in the Senate, on both
    sides of the aisle, to believe that this is normal, acceptable
    conduct for an elected official, Supreme Court Justice, Senator
    to be receiving hundreds of thousands of dollars' worth of
    gifts and vacations, to have your mother's home purchased by an
    individual so she doesn't have to pay a mortgage any longer.
    The list just goes on and keeps moving on. And the American
    people don't understand this.
        Judge Wolf, I read your statement this morning, and I'm not
    going to quote it because maybe some elements that you want to
    quote yourself in your opening statement. But what this Court
    has to rely on is the confidence of the American people in the
    integrity of Justices when they hand down decisions. If they
    hand down controversial decisions and the American people don't
    like them, they can at least say, ``Well, that's the Court.
    They go their own way.'' But if there is any question about the
    integrity and character of these Justices, it really undermines
    the institution of the Court.
        That's why I appealed directly to Chief Justice Roberts.
    This is the Roberts' Court. This is his Court in history. And
    what he chooses to do by way of ethics is going to be
    remembered for generations. I believe he can, and I hope he
    will, step up, raise his hand, and say, ``That's the end of the
    special treatment for Supreme Court Justices. They will be held
    to the same ethical standards as every other Federal judge.''
    That's not too much to ask. It's the very least we should ask.
        I thank you, Judge Wolf, for being here today. I read your
    testimony in its entirety this morning. I'm looking forward to
    asking you a few questions after you've had an opening
    statement. Thank you, Mr. Chairman.
        Chair Whitehouse. Thank you. I will now introduce our
    witness. But before I do, let me say that Judge Wolf, the
    personal character of the various assertions and insinuations
    that the Ranking Member has made, I think, entitles you to an
    opportunity to respond. The proper way to do that, I think,
    rather than deflect the course of this hearing, is to allow you
    to respond as if those were questions for the record, so that
    after the hearing is concluded, you will have a week to offer
    such responses you feel is appropriate, or none, if you feel
    that is appropriate.
        But I would prefer not to have the course of the hearing,
    which is an inquiry into the procedures and processes of the
    Judicial Conference, deflected by those assertions and
    insinuations.
        Judge Wolf is a Senior United States District Court Judge
    for the District of Massachusetts. Judge Wolf was appointed to
    the Federal bench in 1985 by President Ronald Reagan, and from
    2006 to 2012, Judge Wolf served as the Chief Judge for the
    District of Massachusetts. From 2010 to 2012, Judge Wolf was a
    member of the Judicial Conference of the United States, where
    he chaired the Committee on District Judges and was a member of
    the Judicial Conference's Committees on Codes of Conduct,
    Criminal Law, and Rules of Criminal Procedure.
        Before his appointment, Judge Wolf was a Deputy U.S.
    Attorney and chief of the Public Corruption Unit in the
    District of Massachusetts. He also served as special assistant
    to Deputy Attorney General Laurence Silberman and as a special
    assistant to Attorney General Edward Levi. Judge Wolf, you're
    recognized for your opening statement. As I said before, your
    complete testimony and exhibits will be made a matter of
    record.

    STATEMENT OF HON. MARK L. WOLF, SENIOR U.S. DISTRICT JUDGE FOR
          THE DISTRICT OF MASSACHUSETTS, BOSTON, MASSACHUSETTS

        Judge Wolf. Senator, thank you. I have, as requested,
    prepared a little less than 10 minutes of remarks, and I know
    I'm not in my courtroom, so I don't set the procedures. I'm
    very sorry that Senator Kennedy has left, but I hope that I can
    today, in whatever time might have been ceded to him if he
    remained, address some of the inaccurate statements he made,
    rather than doing that exclusively in writing, if time permits.
        But I do thank you for requesting my testimony about how
    the Judicial Conference of the United States in the past
    discharged its responsibility. Under the 1978 Ethics in
    Government Act that applies to all Federal judges, including
    Supreme Court Justices, I am testifying as an individual, not
    as a representative of the Judicial Conference or the Federal
    Judiciary. I would like to highlight some of my lengthy written
    testimony in a further effort to be helpful to you and to the
    Judicial Conference.
        The Act codifies the belief that sunlight is the best of
    disinfectants. Transparency of financial information of a
    Justice or a judge and his immediate family encourages Justices
    and judges to decide cases impartially, as we are sworn to do,
    and encourages reasonable people to believe that we are doing
    so. The Act creates criminal and civil penalties for willfully
    falsifying information, or willfully failing to file required
    information.
        In addition, 18 United States Code Section 1001 makes it a
    crime punishable by up to 5 years' imprisonment to willfully
    falsify or conceal information. The Act defines a specific and
    limited role for the Conference. It provides that the Judicial
    Conference shall refer to the Attorney General, the name of any
    individual it has reasonable cause to believe has willfully
    failed to file a report, or has willfully falsified, or
    willfully failed to file required information.
        Reasonable cause is analogous to probable cause. It's more
    than bare suspicion, but less than by a preponderance of the
    evidence. It is not the Conference's duty under the Act, to
    determine whether a Justice or judge has violated the statute.
    The Conference is to decide whether there is reasonable cause
    to believe a willful violation occurred. If reasonable cause
    exists, the Conference must refer the Justice or judge involved
    to the Attorney General. This division of responsibilities is
    wise and important.
        I was a Conference member in 2011 and 2012. Thus I shared
    responsibility for assuring the Act was properly implemented
    and enforced. In 2011, the Conference received five letters,
    and the Supreme Court received one, in part alleging that from
    2003 to 2009, Justice Clarence Thomas did not make the required
    disclosure that the Heritage Foundation employed his wife. I
    believe, for many years, he checked that her employment was
    none.
        The Justice evidently knew of the requirement because he
    had previously disclosed his wife's employment, including in
    his early years as a Justice. Although the Act does not require
    disclosure of the amount of compensation, the letters stated
    her compensation was substantial. The first letter was sent in
    January 2011 and was referred to the Conference's Committee on
    Financial Disclosure.
        Justice Thomas promptly amended his reports stating that he
    misunderstood the Act's requirements and that the errors were
    inadvertent. Nevertheless, the Conference still had a duty to
    decide if there was reasonable cause to believe his omissions
    were willful, and if so, refer him to the Attorney General.
    Policy of the Conference required that committees' reports to
    the Conference include all their activities since the last
    biannual Conference meeting.
        This information ensured that each Conference member had
    the knowledge and ability to require discussion and possible
    decision by the full Conference. However, the Financial
    Disclosure Committee's reports for the March and September 2011
    Conference meetings did not reference the issues concerning
    Justice Thomas or any related committee activity. The rest of
    the letters to the Conference amplified earlier allegations,
    questioned whether Justice Thomas' omissions actually were
    inadvertent, and raised other concerns, including allegations
    that Justice Thomas had failed to report travel on Harlan
    Crow's jet and yacht.
        Those letters were sent on or after the date of the
    September 13, 2011, Conference meeting. In early 2012, I found
    some of the 2011 letters on the internet. I told Judge Thomas
    Hogan, Secretary of the Conference, that I was concerned that
    other Conference members and I had not been informed of the
    letters in their request to refer Justice Thomas to the
    Attorney General. I suggested that the matter be discussed at
    the March 2012 meeting. He told me that he had referred the
    letters to the Financial Disclosure Committee and asked me to
    wait until the committee chair, Judge Joseph McKinley,
    responded to him.
        Judge Hogan subsequently gave me Judge McKinley's February
    23, 2012, response. I spoke with Judge McKinley and became
    concerned that in 2011, the committee may have done nothing
    after Justice Thomas amended his reports and had not addressed
    the question of whether reasonable cause existed. Judge
    McKinley told me that the staff had not referenced the letters
    in the last three reports to the committee because they
    regarded them as routine. He also said, however, that this was
    the only time Members of Congress or the public had ever
    requested a referral to the Attorney General.
        There was also no reference to the letters in the
    committee's report for the September 2012 Conference meeting.
    Judge Hogan told me he had received on April 17, 2012, revised
    version of Judge McKinley's February response, and he wrote to
    the letters' authors on April 30th to inform them that the
    committee had decided against referral. I asked Judge David
    Sentelle, chair of the Conference Executive Committee, to put
    the matters concerning Justice Thomas on the September 12
    Conference agenda. The Executive Committee denied my request.
        I then exercised my right to move the committee report to
    the discussion calendar. I told Judge Hogan that I would send a
    memorandum to Conference members before the meeting explaining
    my concerns. He urged me not to include the two letters from
    Judge McKinley describing the committee's actions. I acquiesced
    and did not attach them to my memorandum. At the September 11,
    2012, meeting, I moved to disapprove the committee's report and
    require revision of the prior three reports.
        Chief Justice Roberts allowed me to speak briefly about the
    deficient process and whether the Conference was properly
    performing its important but limited role of determining
    whether reasonable cause to refer to the Attorney General
    existed. I hoped to generate discussion. When I concluded, the
    Chief Justice immediately recognized Judge Sentelle. Judge
    Sentelle successfully moved that the issues be returned to the
    committee for a report at a future meeting in which he knew I
    would not be present because my term as a Conference member was
    ended.
        It is unfortunately relevant to consider these events now.
    The Act only serves its vital purpose if the Conference
    understands and properly performs its role. I believe that in
    2011 and 2012, it did not.
        First, despite Congress and the public raising serious
    allegations, and the Conference referring them to the
    committee, it appears that the committee did little to nothing
    for at least a year. The committee should have, at the very
    least, addressed the allegations at the March 2012 committee
    meeting.
        Second, the committee's process was opaque. In 2011, likely
    through inaction, then in 2012 by insistence, the committee did
    not disclose to members of the Conference the allegations, the
    actions, if any, it took, and the reasons for any decisions.
        Third, the statutory mandate for the Conference, and by
    delegation to the committee, was to determine whether there was
    reasonable cause to refer, not the ultimate merits of whether
    the Justice's violations were willful.
        However, in conversations, letters and reports, the
    committee repeatedly framed its inquiry using the wrong
    standard. As I frequently tell my law clerks, if you address
    the wrong question, you are likely to get the wrong answer.
    Thank you.
        [The prepared statement of Judge Wolf appears as a
    submission for the record.]
        Chair Whitehouse. Thank you very much, Your Honor. It
    sounds to me like the nutshell version of your testimony is
    that the wrong question was answered, i.e. willfulness rather
    than reasonable cause. It was answered in the wrong venue, to
    wit, a committee or subcommittee, or perhaps individual
    determination, instead of Judicial Conference, as the statute
    suggests, with the result that the deliberations were, to use
    your word, ``opaque,'' they took place out of public view. Is
    that a fairly accurate summary?
        Judge Wolf. Yes, with the caveat that, it appears to me,
    having revisited this and having more information, in some
    respects than I had in 2012, it appears to me that no decisions
    and possibly no action was taken in 2011. And that's another
    concerning matter.
        Chair Whitehouse. The one place where there is an
    opportunity for public awareness of what is happening in this
    process is at the Judicial Conference. Correct?
        Judge Wolf. Well, that's not completely correct either,
    because I have scoured the Guide to Judicial Policy, which is
    not a public document, and the judiciary's description of the
    Judicial Conference and its committees. There is nothing in
    there that says that a judge or Justice can't talk about what
    transpired. However----
        Chair Whitehouse. I'm asking a bit of a different----
        Judge Wolf. Well, I know, but no--but however, I expect
    that some of you at least have attended those meetings. The
    public is not allowed to observe, to see the proceedings.
    They're allowed to see this hearing. They can judge my
    credibility if they're interested in my motives. But that kind
    of transparency doesn't exist in the Judicial Conference.
        And there are certainly things that should properly be
    discussed confidentially and maintained as confidential,
    particularly before decisions are made, the essence of the
    deliberative process privilege, predecisional. But striking the
    right balance between transparency and accountability is, I
    think, for the Judicial Conference, like every branch of
    government, important.
        Chair Whitehouse. The one thing that is made public is the
    report of each Judicial Conference after the meeting. Correct?
        Judge Wolf. A report of the proceedings.
        Chair Whitehouse. Yes.
        Judge Wolf. Which is a summary.
        Chair Whitehouse. And the report of the proceedings would
    tend to include reports to the Conference from its committees.
    So the one way that any of this would become public is only if
    the determination that was made here was actually referred by
    the Financial Disclosure Committee to the Judicial Conference,
    and then that would be reported in the summary of the Judicial
    Conference's activity. Correct?
        Judge Wolf. Yes.
        Chair Whitehouse. And that did not happen in this case?
        Judge Wolf. The reports of the Judicial Conference--I'm
    sorry, the reports of the Financial Disclosure Committee were,
    under Judicial Conference policy, required to include
    everything that the committee had discussed and decided since
    the last Conference meeting, even if no recommendation for
    Conference action was being made. The four reports, starting in
    March 2011, of the Financial Disclosure Committee to the
    Conference contained no reference, no hint, that any letters
    had been sent or any issues had been raised concerning Justice
    Thomas.
        Chair Whitehouse. The only disclosure that the Judicial
    Conference provides any record of in these matters is the April
    30 letters from the Judicial Conference that summarily say,
    ``Nothing has been presented to support a determination that
    Justice Thomas' failure to report the source of his spouse's
    income was willful, or that Justice Thomas willfully or
    improperly failed to disclose information concerning travel
    reimbursements.'' That is it that has been public. Correct?
        Judge Wolf. As far as I know, yes.
        Chair Whitehouse. As far as I know, too. I think as the--
    the convention is to go to the leading Republican. That,
    Senator Lee, is you right now, and then Chairman Durbin.
        Senator Lee. Mr. Chairman, I'd note at the outset, I'm
    concerned by the tone and tenor of this hearing. It feels an
    awful lot like a political witch hunt. Political witch hunt
    which may be in the process of being aided and abetted by a
    member of the judiciary. After reading the letters from Senator
    Whitehouse, the responses from the Administrative Office of the
    Courts, and news articles, this appears certainly like sour
    grapes, or perhaps some combination of sour grapes and a
    political witch hunt.
        We've got people who are trying desperately to make a lot
    out of something that isn't there. And I'd like to offer into
    the record, Mr. Chairman, a letter from the Secretary of the
    Financial Disclosure Committee indicating that two iterations
    of the committee and two subcommittees found that there was no
    willful violation by Justice Thomas.
        Chair Whitehouse. Is this the May 15th letter?
        Senator Lee. Yes. It's the May 15th letter.
        Chair Whitehouse. It's already on the record.
        Senator Lee. Thank you.
        Judge Wolf. I'm sorry, what letter is that, please?
        Chair Whitehouse. A letter dated May 15th to me from the
    Honorable Roslynn R. Mauskopf answering letters that I had sent
    April 21st, 27th, and May 5th.
        Senator Lee. Judge Wolf, how was the press, and
    specifically Bloomberg News reporter Zoe Tillman able to review
    your August 2012 letter to a group of Judicial Conference
    colleagues. How did that happen?
        Judge Wolf. I do not know. She sent me an email asking if I
    would speak to her, and I communicated that I decline.
        Senator Lee. Doesn't the timing of this seem a little odd?
    I mean, this is something that occurred 11 years ago, and days
    before this hearing, it magically appears. Did you leak a copy
    of the letter----
        Judge Wolf. No.
        Senator Lee [continuing]. To Ms. Tillman? Did you leak it
    to anyone else who may have given it to Ms. Tillman?
        Judge Wolf. No. And actually, of course, I've thought about
    that question, too, and you'll excuse me if I say something
    that may be supportive of all of you. I had not given those
    letters to any Senator, any member of his or her staff. The
    Administrative Office would have these records.
        Senator Lee. Who did you give them to?
        Judge Wolf. Nobody.
        Senator Lee. No one?
        Judge Wolf. Correct. And Mr. Lee, I worked closely with
    your father when he was the Assistant Attorney General, Civil
    Division, and I was Attorney General Levi's liaison to him. I
    think your father would have been very disturbed by the matters
    that I've addressed, A, and B, and I would have thought that
    Members of the Senate from both parties would be concerned
    about whether the judiciary and anybody else was properly
    interpreting----
        Senator Lee. Seriously? Seriously? You're going to bring up
    my dad? You're here--you're here attacking a member of the
    United States Supreme Court on grounds that are frivolous, on
    grounds that have been rejected by two different iterations of
    the Judicial Committee that you're talking about, twice
    rejected. And you have the audacity to come in here and invoke
    the memory of my late father? Shame on you, sir.
        Okay, look, you submit a statement to this Committee. It's
    a lengthy statement, contains 122 footnotes. On page 2, you
    state that you're testifying, quote, ``as an individual and not
    as a representative of the Judicial Conference of the United
    States or the Federal Judiciary,'' close quote. Did your law
    clerks help you draft this?
        Judge Wolf. Yes.
        Senator Lee. Who else helped you draft it? Who else was
    involved in the drafting of it?
        Judge Wolf. Just my law clerks. Although I did consult one
    of my colleagues about it.
        Senator Lee. Okay. So you're not here on behalf of the
    Conference, and yet you use judicial resources to do it, and
    you consulted one of your colleagues to do it, and you're
    speaking solely in your capacity as someone who served on the
    committee, and so you're purporting to speak for the
    committee----
        Judge Wolf. No, I'm not. I said I'm speaking--when I was
    invited first to be interviewed, I thought by Senator Kennedy,
    who declined to meet with me, but I did meet with his staff.
    And then when I was invited to testify, I immediately informed
    the Administrative Office of the United States Courts. I was
    familiar with the guidance, again, not public, that judges are
    free to speak. The Canon 4, as you saw when you read my piece,
    encourages judges to speak on matters relating to the
    administration of justice when they have experience or
    expertise.
        And the only thing that the Administrative Office said to
    me was be sure to point out that you're testifying as an
    individual, which I had already done, and what I was drafting,
    and if I wanted any ethical guidance, it mentioned who to call.
    But Canons----
        Chair Whitehouse. Senator Durbin.
        Judge Wolf [continuing]. I'm sorry--are vividly clear, and
    there wasn't any open issue on which to consult.
        Senator Lee. Yes. And yet----
        Chair Whitehouse. Senator Durbin.
        Senator Lee [continuing]. Yet you're here speaking in that
    capacity, based on your service on that committee,
    notwithstanding the fact that your motion to have it considered
    by the full Conference as to your suggestion that Justice
    Thomas' disclosures were willfully wrong was rejected.
        Chair Whitehouse. Senator Durbin.
        Chair Durbin. Judge Wolf, I've been surprised, in a way, at
    the reaction of my Republican counterparts to this issue. Just
    last year, there was a bipartisan effort by two Members of this
    Committee, one Democrat, one Republican, to establish the
    standard of disclosure when it came to stock ownership by
    Federal judges, when they had before them a case that might
    involve that same stock or company. And it struck me that there
    was a true bipartisan spirit that this was a reasonable ethical
    standard and should be submitted for the judiciary to live by
    that standard.
        Yet when we had a hearing about 3 weeks ago on issues
    related to Justice Clarence Thomas and his disclosure
    standards, it really broke on party lines. And the same thing
    has happened today, which comes as a disappointment to me as
    much as a surprise. This notion that anyone in public office at
    a level of Senator or Supreme Court Justice can receive
    hundreds of thousands of dollars' worth of gifts in travel and
    hospitality and not disclose it and argue that, ``Well, that
    was inadvertent,'' is to ignore the obvious.
        The American public takes a look at that and said, ``What
    is this judge doing? How can we trust his judgment if one Texas
    billionaire has such a large part of his life in terms of his
    attention?'' What's your response to that?
        Judge Wolf. Essentially, I think you've characterized
    accurately, based on what I hear, just being a citizen, may be
    the reaction of the man in the street. However, as I wrote in
    my testimony, I think--the Ethics in Government Act emerged
    after the Watergate scandal for good reasons. Greater
    transparency of financial activities of public officials, not
    just judges, was understood to be very important to assuring,
    among other things, the impartiality of judges.
        And I think that Act struck, as it's written, a very
    appropriate balance. It gives the Judicial Conference the
    opportunity and the obligation to determine whether there's
    reasonable cause to believe there's been a willful violation.
    It doesn't permit them, the Judicial Conference, to make the
    ultimate determination of whether there was.
        If the Judicial Conference makes a referral to the Justice
    Department, it should diminish the potential and the perception
    that the Justice Department has launched a witch hunt against
    judge or Justice. But members of the Judicial Conference
    don't--are not all impartial. There are friendships, there are
    professional relationships, there are interests that----
        Chair Durbin. That goes to the heart of the issue before
    us, and that is, the fact that the Supreme Court of the United
    States of America has not established code of conduct and
    ethical standards that in and of themselves are trustworthy.
    And when this matter came before this Committee several weeks
    ago, there were dissenters on the other side, on the Republican
    side, as to whether or not this was even worthy of talking of.
    They accused us of smear and harassment to even raise the facts
    brought up by ProPublica.
        And I also want to say, their second argument we've just
    addressed here and that's separation of powers. Do we have any
    business, as Congress, when it comes to the ethics of the
    Court? Well, I thought that we did until we received a response
    from Chief Justice Roberts. And let me read it to you. This
    response was from the 2011 Year-End Report on the Federal
    Judiciary.
        Chief Justice Roberts wrote, ``In addition to establishing
    Judicial Conference, Congress has enacted legislation
    addressing a number of specific ethical matters. In particular,
    Congress has directed Justices and judges to comply with both
    financial reporting requirements and limitations on the receipt
    of gifts and outside earned income.'' Then, he says, ``The
    Court has never addressed whether Congress may impose these
    requirements on the Supreme Court. The Justices nevertheless
    comply with these provisions.''
        In other words, I think he's going to the heart of the
    question as to whether anyone can raise a question about the
    ethical standards or establish ethical standards, even those
    embraced by the rest of the Federal Government. That, to me,
    gets to the heart of why we need to enact legislation. Senator
    Whitehouse has a bill on the subject. Others do. And I'm sure
    this Committee is going to address it. This is not a witch
    hunt. This is not a smear. This is not a harassment. This is to
    try to rescue the reputation of the Court from some very sordid
    facts that have been disclosed and proven.
        Judge Wolf. And, as you know, because you read it beginning
    on page 4 of my testimony, written testimony, I considered not
    just whether it was encouraged that I come, but whether I come
    and testify today would be inconsistent with the independence
    of the judiciary or separation of powers. Again, emerging from
    President Nixon's administration, is Supreme Court
    jurisprudence that says, sensibly, that the three branches are
    not each in a silo. We've divided power so there'll be checks
    and balances.
        And if Congress is taking action that doesn't unduly--well,
    it doesn't impact the performance of the Court's core function,
    that's not a separation of powers violation. In fact, the D.C.
    Circuit case decided that in a case in 1994 concerning
    Congressman Rose, no separation of powers problem. And the core
    function of the courts is to decide cases impartially.
    Independence can be helpful to that. But independence is not an
    end in itself. An independent judge or an independent judiciary
    could be a dishonest judge or a dishonest judiciary.
        And therefore, a delicate balance has to be struck between
    the interests of independence in assuring that judges, like
    every public official and every citizen in the country, is
    somehow accountable. And the financial disclosure statute that
    you enacted and the Judicial Conference has a responsibility to
    properly implement is an important and appropriate element of
    that accountability.
        Chair Whitehouse. Senator Hirono.
        Senator Hirono. Thank you, Mr. Chairman. Judge Wolf, does
    the Supreme Court have a code of ethics that applies to it?
        Judge Wolf. No.
        Senator Hirono. Is there a code of ethics that applies to
    the Federal district and circuit courts?
        Judge Wolf. Yes.
        Senator Hirono. Is there any reason that the Supreme Court
    should not have a code of ethics that applies to them as it
    applies to every other Federal judge?
        Judge Wolf. As I wrote in the article that was consistent
    with the Code of Conduct in 2021, I think it would be
    beneficial if the Supreme Court had a code of conduct. But, if
    I could say, as I wrote in my testimony, because I continue to
    think about these things, I think that the discussion of
    enacting a statute that would require the Supreme Court to
    adopt a code of conduct is distracting from the more important
    issue about the enforceability--well, the way existing statutes
    are being enforced or implemented.
        Because if there was a code of conduct for the Court and it
    was the ultimate arbiter of whether a Justice was complying
    with the code of conduct, you'd have, I predict, enforcement
    problems that are similar to the problems that I've
    identified----
        Senator Hirono. Well, excuse me, Judge Wolf----
        Judge Wolf [continuing]. With regard to the Ethics Act.
        Senator Hirono [continuing]. The enforcement of a code of
    conduct is, I think, a separate issue that we would need to
    address. But really, the bottom-line question is should they
    have a code of conduct as applicable to them as to every other
    Federal judge? And your answer is, yes, we can figure out how
    to do it.
        For example, in Hawaii, our constitution requires the
    Supreme Court to establish a process where it will abide by a
    code of conduct. And we established--there is established a
    commission that does not have any judges, and if that
    commission determines that there needs to be a further
    referral, then it does go to the Supreme Court. But the judge--
    Justice who is involved would have to recuse himself. So there
    are ways that we can do the enforcement part.
        Judge Wolf. I'm sorry to interrupt you, Senator, but I'd
    actually like to say something to support you. We have the same
    thing in Massachusetts. After I worked for Attorney General
    Levi, I was the young junior co-counsel to the former president
    of the American Bar Association. In the Massachusetts Supreme
    Judicial Court, we prosecuted the chief judge of the State
    trial court for ethical violations, including alleged perjury.
        Senator Hirono. So there are ways that we can determine how
    the enforcement will occur, so that doesn't get away from the
    really bottom-line question. And to the public, when they see
    articles that say that we have a Supreme Court Justice who
    received over half a million dollars' worth of airfare or
    whatever it is, I think common sense says that something is
    wrong here, that this was not disclosed, and there's some kind
    of a loophole that enabled this Justice to think that he did
    not have to disclose this.
        And now we have a Supreme Court telling us that they do
    have practices and principles that applies to them. And I'm
    just wondering, why is it that they are so reluctant to impose
    a high ethical standard to itself? They are the highest court
    of the land. And when I listen to my friends on the other side
    of the aisle, it really seems like, to me, when they attack
    you, they are attacking the messenger. And really the message
    is, Should they not have a code of ethics? I think that's such
    a simple thing. You know, my gosh. They doth protest too much.
    Thank you. Mr. Chairman.
        Chair Whitehouse. Before we wrap up, you asked for 5
    minutes to respond to the various accusations and insinuations
    of the Ranking Member. And I think, based on what I saw here,
    that is appropriate. So I will yield you 5 minutes.
        Senator Lee. Do we have time?
        Chair Whitehouse. Probably not. We have a vote we need to
    get to. Proceed.
        Judge Wolf. Well, I guess I would say two things, and I'd
    have to look more closely at my notes----
        Chair Whitehouse. This does not hold back your opportunity
    to write a response as a QFR in the week that follows the
    hearing.
        Judge Wolf. I'm not here as part of a witch hunt. I'm here
    because I hope to contribute to reframing some of the important
    issues and prompting, maybe naively, a more civil, sensible
    discussion of them. I do think, as I said earlier, that all of
    you in the Senate should and do have an interest in whether
    legislation your predecessors enacted after Watergate is being
    properly implemented.
        When Senator Kennedy says the committee found four times
    that there was no violation, no willful violation. First,
    although I have read Judge Mauskopf's letter, which I got
    yesterday, based on that and other information available to me,
    I don't believe that that is correct. And again, I mean this
    respectfully, Senator Lee. I don't mean to be provocative, and
    I'd be happy to talk to you about this afterwards if you don't
    get more time. It's not up to the Judicial Conference to
    determine whether a violation occurred.
        If it's to determine whether there's a reasonable cause to
    believe that one may have occurred, and then to refer it, it's
    comparable to the grand jury process and the trial process. And
    as I said, if the Judicial Conference has arrogated it to
    itself authority that you didn't give it, that's not proper,
    and I thought would be a matter of concern to all of you. There
    are a number of things that Senator Kennedy pulled out of the
    media that are not true.
        But, for example, he was talking about a death penalty case
    where there was a motion to recuse me because at a time--it's
    called United States v. Sampson, I looked at it this morning.
    At a time when a professor was not on the witness list as an
    expert, although he had, for an earlier case, been on the
    witness--an earlier iteration of this case been on the witness
    list, I moderated a program about a film where he was one of
    the speakers. I had never met him before. As soon as I learned
    that he was going to be a witness at the retrial, I told the
    parties, and I told them they could ask me any questions.
        I told them what occurred, and they sent out the FBI, the
    Massachusetts State Police, the Internal Revenue Service to
    investigate the veracity of what I told them. And I gave them
    the film, the video of the event, and they all said--the
    Government said I wasn't prejudiced, but a reasonable person
    could question my impartiality, the standard under 18 United
    States Code 455(a) that applies to judges and Justices. I
    considered that seriously. I wrote a 53-page decision, and I
    found that a reasonable person could not question my
    impartiality, and therefore, I had a duty to continue to sit,
    which is what the jurisprudence is.
        Evidently, the Solicitor General didn't authorize an
    appeal. That wasn't appealed. I didn't recuse myself. I did
    transfer the case long after to one of my colleagues because of
    other responsibilities that I had. But I didn't recuse myself,
    and I didn't leak any information to the FBI. You can read a
    661-page decision that I wrote, Senator Kennedy, that starts by
    saying, ``Everything secret degenerates, even the
    administration of justice.'' That's a decision I wrote after 9
    months of hearings that exposed massive corruption in the FBI
    in connection with Whitey Bulger.
        It's organized--it's top echelon organized crime informant
    and his sidekick, Stevie ``The Rifleman'' Flemmi. In that
    decision, I describe in detail the pattern of the FBI putting
    false--or a particular FBI agent--putting false information in
    informant files to direct attention from real culprits. That
    was put in there at a time when I was a prosecutor
    investigating a leak in a case against--that compromised a case
    against a State representative. That's only one of the many
    statements.
        Chair Whitehouse. Well, I'll leave you to continue to
    respond as you see fit to the allegations.
        Judge Wolf. I'm going to stop there. But could I say one
    more thing, please? I see that I've got 1 minute, 3 seconds and
    I think this is important, and it relates to some things that
    come up. I've explained why I'm here today. Some people I
    respect advised me not to do this, even though it was
    permissible, appropriate that I would be subject to various
    unfair attacks. It's just the toxic political environment. And
    I thought about that, and I'd like to tell you why I did it.
        I did it because so many of my colleagues on the bench are
    deeply disturbed themselves. We work--I'm a senior judge, I
    don't get paid. I would get my salary for life if I were fully
    retired. But so many of us work so hard to give integrity to
    the ideal of impartial equal justice under law, and now that
    ideal is beleaguered. I do it because my friend, Dr. Jim
    O'Connell, the head of--founder of Boston Health Care for the
    Homeless, who's with me today, and others, you know, tell me,
    ``What are we going to tell our children about their ability to
    respect the courts?''
        I do it for my law clerks. My law clerks are here. The Code
    of Conduct and the ethical opinion says that I can't use them
    for anything that's substantial. I told them they didn't need
    to work on this. They asked to. This is their vacation. I paid
    to bring them here. They wanted to do it, and they've thanked
    me for doing it, because they come into the profession the way
    you and I did, with ideals. And all this controversy is
    generating skepticism and hopefully not cynicism, because our
    profession needs ideals. And I'm----
        Chair Whitehouse. That's a good tone to end on. So let me
    leave it there. Let me just remind everybody that the hearing
    is titled, ``Review of Federal Judicial Ethics Processes at the
    Judicial Conference of the United States.'' As a result of this
    effort, we have received a very significant document, perhaps
    the most complete response from the Judicial Conference ever
    about its processes. We have a fact witness who was present to
    see these processes in action, who has testified about what he
    saw in that time.
        And I believe my opening statement and my questioning have
    all been very factual and calm, as I think is appropriate in
    these circumstances. And what we've heard is that this hearing
    has the tone of a witch hunt, that we're attacking a member of
    the Supreme Court. There has been both interrupting and
    shouting taking place. There has been mocking and insinuating
    taking place. And it just seems to me that I'd like to get this
    work done without all that drama. I think there are real
    questions that need to be answered, and I intend to continue to
    pursue them. And with that, the hearing is adjourned.
        [Whereupon, at 3:15 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

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