Congressional Record, Volume 169 Issue 209 (Tuesday, December 19, 2023)

[Congressional Record Volume 169, Number 209 (Tuesday, December 19, 2023)]
[Senate]
[Pages S6043-S6046]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

U.S. Supreme Court

Mr. WHITEHOUSE. Mr. President, I am here today for the 26th time to
detail the special interest billionaire-funded scheme that has overrun
the U.S. Supreme Court. This evening, I would like to discuss some
things about Republican Judiciary Committee members' performance in the
Senate Judiciary Committee recently as we voted on authorizing
subpoenas for billionaire Harlan Crow, some of his holding companies,
and the court-fixer, Leonard Leo.
At the end of last month, we voted, through the authorization for
Chairman Durbin, to issue subpoenas, and it was greeted with a barrage
of talk about a whole variety of things. But one was how Democrats were
destroying the Judiciary Committee. We were absolutely totally going to
destroy the Judiciary Committee. It was on us that the Judiciary
Committee was going to be destroyed.
Well, all the talk about destroying the Senate Judiciary Committee
came, rather, in the nature of a threat. It was actually more like, if
we did something that we are perfectly entitled to do to pursue
subpoenas after being persistently obstructed, then Republicans would
destroy the committee, would undo any good will or any bipartisanship
or any collegial effort.
Somehow that Republican threat to destroy the committee morphed into
Democrats destroying the committee. But that doesn't make any sense. If
you think of a kidnapper shooting his hostage and then blaming the
family for the murder of the hostage because the family hadn't yielded
to the kidnapper's demands, that is kind of backward logic.
Also backward logic is the argument that the subpoenas were an effort
to destroy not the committee but the Supreme Court. The subpoenas would
destroy or damage the Supreme Court.
OK. Let's think about that for a minute.
There is only one possible way that it could be true, logically, that
these subpoenas could do damage to the Supreme Court--only one--and
that is if the information the subpoenas would disclose is so damaging
that it would damage or destroy the Court. Subpoenas that turned up
nothing would be no harm, no foul. If there is nothing evil to see in
the information the subpoenas are pursuing, there is no harm. The
necessary logical predicate of the destroy-the-Court argument made by
our colleagues is that subpoenas would reveal that something truly
horrible happened at the Court that now needs to be covered up--covered
up.
But that is not how ``appearance of impropriety'' works. Justices of
the Supreme Court are supposed to avoid doing things that might create
even the appearance of impropriety. The appearance-of-impropriety issue
is not that you do impropriety and then go out and cover up its
appearance.
We also heard a lot that day about the problem of subpoenaing
``private citizens,'' as if that were something unusual. If that is a
problem, it was a very new problem because just days before, the
committee had subpoenaed private citizens in the tech sector on a
bipartisan basis without anyone's objection.
As always, our Republican friends persisted in the argument that this
committee has no business looking at Supreme Court gift disclosures.
That argument was, is, and will always be a phony. The Judiciary
Committee has every right to oversee how an Agency that Congress
created--the Judicial Conference--is implementing a law that Congress
passed, the judicial disclosure law. It is within the jurisdiction of
the committee; it is a congressionally established body; and it is a
statute passed by Congress.
If Congress can't oversee how Agencies it creates oversee laws it
passes, there is no oversight left. Obviously, understanding what gifts
went undisclosed is essential to that inquiry.
We then heard that you can't have subpoenas because a related bill is
out of the committee. But Congress has every right to oversight and
subpoenas at any stage in legislation--and even at no stage in
legislation. Because the bill in question has not passed here in the
Senate--it has come to the Senate floor, but it has not passed in the
Senate--and because the Republicans not only stonewalled our
investigation but threatened very plainly a partisan blockade of the
bill here on the floor--``not a single Republican vote'' was, I think,
what they threatened--that makes it all the more obvious why continuing
to build the factual case for reform is appropriate. There is precisely
zero basis for the theory that a Senate committee can't look into a
subject of legislation once some related legislation is out of
committee. Preparing for a successful floor vote on that bill is only
one obvious reason why that theory is painfully wrong.
If you look at all of that noise and fuss that was put up, it is hard
not to deduce that maybe something else is going on here. Here is my
theory of the case, as I have said in previous speeches: Very powerful
rightwing billionaires spent years and hundreds of millions of dollars
on a scheme to influence--and even control--the Supreme Court. Those
very powerful rightwing billionaires are also massive funders of
Republican politics, including Republican Senate politics.
The problem is that those very powerful rightwing billionaires got
sloppy,

[[Page S6044]]

and their gift program to take care of certain Supreme Court Justices
started breaking gift and disclosure rules--very likely tax rules, as
well, with a few of the amenable Supreme Court Justices whom they were
rewarding with lavish entertainments.
What we already know about that gift program is bad enough. How far
the billionaires' hands are in the cookie jar and how coordinated and
orchestrated this secret gift program was is information that they
desperately want to suppress. So they do what megadonors do and
pressure Members of Congress to do what they want, and, in this case,
it was help the billionaires suppress the truth of what went down here.
I will close by observing that the argument that Democrats are
behaving improperly in our work to clean up the mess at the Supreme
Court is an argument that has some very powerful rebuttals.
The first rebuttal comes from the billionaires who are actually
cooperating with our investigation.
Mr. President, I ask unanimous consent to have printed in the Record
at the conclusion of my remarks as exhibits several letters reflecting
that cooperation: the first, dated July 25, 2023, to Chairman Durbin
and Senator Whitehouse; the second, dated Octobers 18, 2023, to
Chairman Durbin and Senator Whitehouse; the third, dated October 31,
2023, to Senators Durbin and Whitehouse; the fourth, dated November 6,
2023, to Senators Durbin and Whitehouse; and the fifth, dated November
7, 2023, Dear Committee.
I would also note that another--yet another wealthy donor, not one of
these in the letters--yet another wealthy donor has cooperated with the
Finance Committee's investigation into the tax ramifications of all
these secret gifts and what was disclosed and what was not disclosed.
And that donor revealed to the Finance Committee compelling evidence
that he collected only interest--only interest--on a quarter-million-
dollar-plus loan to Justice Thomas; that the donor never collected
any--any--principal payment; and that he ultimately stopped collecting
either interest or principal on that quarter-million-dollar-plus loan.
So the cooperation of people with our investigations rebut the
argument that we have no business. The second rebuttal comes, actually,
from within the Judiciary itself because this is not the only avenue we
are pursuing to get to the bottom of the mess at the Supreme Court.
When I got the Judicial Conference to review the Scalia trick, which
was to have intermediaries solicit dozens of personal invitations from
hunting resort owners, whom Scalia had often never even met, and then
failed to disclose the free vacations because, in his view, the
personal invitation made it personal hospitality, within the terms of
the disclosure statute--well, the members of the Judicial Conference--
the chief judges of the circuits and of district courts who together
comprised the Judicial Conference--those chief judges blew that trick
to smithereens. They didn't criticize me for being a bad Senator asking
bad questions and going places I shouldn't be going. They dropped the
hammer on the Scalia trick. They put a dead finish end to it.

And later, when I got the Judicial Conference to look at the
billionaire-funded flotillas of amicus briefs that they send in through
phony front groups to tell the Justices what it is that they want them
to do in cases and the phony front groups were not disclosing their
true funders or their true interconnections or their true
commonalities, again, this array of very distinguished chief judges
didn't look and say: Well, here is a Senator on an improper rampage. We
can't have any of this. No. They announced that they were revisiting
the amicus brief disclosure rule because it needed fixing, and they are
in the process of finalizing that right now. So two for two. When
questions related to this investigation have been taken up by the
Judicial Conference, they have actually been handled perfectly
consistent with the thrust and tenor of our investigation.
The third rebuttal that you will have to trust me on, I am afraid, is
that over and over, I have heard from Federal judges that this
investigation is important; that we are doing good work; and that we
should keep the pressure on and don't let up and get to the bottom of
this mess. I don't mean my home State judges, either. From all around
the country, I am getting messages of support from judges appointed by
Democratic and Republican Presidents that what has happened at the
Court is a disgrace and that I should keep at it; that the Judiciary
Committee should keep at it for the good and the health of the
judiciary itself.
By comparison, when you look at the frantic complaining about our
work, it mostly comes from a small handful of dark money mouthpieces
actually linked to the Court-capture scheme. Obviously, Mr. Rivkin, who
is Leonard Leo's lawyer, is out to blockade our investigation. So there
is one. He represents Leonard Leo against our investigation, and he
summoned Justice Alito to offer an opinion to his and Leonard Leo's
benefit in the pages of the Wall Street Journal editorial page.
Another voice is Leonard Leo's painting pal--you may remember this
painting that was done at Harlan Crowe's Adirondack estate with
billionaire Crowe, Justice Thomas, and Leonard Leo, the Court fixer.
Well, also there is painting pal Mark Paoletta. He is another
persistent voice; and he couldn't be more in the scheme than that
painting shows.
Also, Carrie Severino turns up. She is Leonard Leo's dark money
sidekick-successor at the dark money funded Federalist Society and the
dark money funded fictitious name group, Judicial Crisis Network.
And then, of course, there is the Wall Street Journal editorial page
whose people have received a million dollars in personal cash from the
dark money Bradley Foundation at the middle of that dark money amicus
flotilla. At attorney Rivkin's request that I mentioned, Justice Alito
even provided a cameo performance in the Wall Street Journal editorial
page that defended the position of his friend Leonard Leo in plain
violation of multiple judicial ethics guidelines.
All that Rivkin-Leo-Alito stunt--Wall Street Journal editorial page
stunt--needed was Paoletta and Severino to make it a clean sweep of all
the major mouthpieces.
Steering away from troublesome facts is a constant theme in the mess
we are trying to dig into over at the Court. In the January 6 and
Arizona cases, what Justice Thomas knew about his wife's insurrection
activities and when he knew it is the salient question about recusal.
He has never been asked. What made Justice Alito say that in that Wall
Street Journal editorial, attorney Rivkin was acting just as an
interviewer and not as Leonard Leo's lawyer, even though Rivkin was
under contract to Leonard Leo as his lawyer at that time? That question
has never been asked. What became of Thomas' quarter-million-dollar
loan, and why was it not reported? That question has never been asked.
What made Justice Alito think that he should suddenly start answering
legal questions likely to come before the Court in the pages of the
Wall Street Journal editorial page, despite every Justice in their
confirmation hearing saying: That is inappropriate? That question has
never been asked.
What made Thomas think the Judicial Conference action that I
described--blowing the Scalia trick to smithereens--was a change in the
rules and not a clarification of the rules? That question has never
been asked. But it is a question that matters because the Judicial
Conference actually called it a clarification and Thomas' lawyers
treated it as a change. And the difference is this: If it is a change
in the law, you don't have to go back and clean up your prior
incomplete and false filings. If it is a clarification, you have to go
back and clean up your prior defective filings.
So to say that this was a change despite the fact the Judicial
Conference said it was a clarification is a very significant legal
leap; and no justification for it was offered at the time or has been
proposed since.
In all of these matters, the common theme is that factfinding--the
very basis of due process--factfinding is not performed around the
Supreme Court Justices. Factfinding, despite being the essence of due
process, this Court avoids like the plague.
All of this--the behavior of our friends in the committee, the
cooperation and support from billionaires and judges and others, the
mischief of not

[[Page S6045]]

answering basic fact questions--all of it signals that there is a lot
going on here; that there is a lot to investigate; and that our
investigation must and will continue.
To be continued.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Erickson | Sederstrom,

Attorneys at Law,

July 25, 2023.
Re Response to Letter Dated July 11, 2023, to Robin P.
Arkley, II, Our File No.: 00018.010802.

Erickson | Sederstrom,

Attorneys at Law,

October 18, 2023.
Re Response to Letter Dated July 11, 2023, to Robin P.
Arkley, II, Our File No.: 00018.010802.

GreenbergTraurig,

October 31, 2023.
Re Response to September 14, 2023 Letter to Paul Anthony
Novelly.

Hon. Richard Durbin,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Hon. Sheldon Whitehouse,
Chairman, Subcommittee on Federal Courts, Oversight, Agency
Action, and Federal Rights, U.S. Senate, Washington, DC.
Dear Senators Durbin and Whitehouse: We write on behalf of
our client Paul Anthony Novelly in response to your letters
dated September 14, 2023 requesting information regarding
``gifts, payments or items of value exceeding $415'' provided
by Mr. Novelly or his affiliated Companies to ``any Justice
of the Supreme Court or member of the Justice's family.''
Your letter sought a response no later than September 27,
2023. Your Committee staff members subsequentjy granted an
extension until October 31, 2023.
To begin with, we are aware of no evidence that Mr. Novelly
or his affiliated Companies, gave anything to anyone as
specifically defined in your letter or engaged in any
transactions with those identified in your letter that were
unusual, inappropriate, improper or contrary to law. In
particular, any claims made by what your letter characterized
as ``investigative reporting'' sources regarding the presence
of Justice Clarence Thomas on a yacht owned by Mr. Novelly
travelling in the Bahamas are false. Mr. Novelly is not aware
of any basis whatsoever to support any suggestion or claim of
yacht trips or vacations provided by him to Justice Thomas.
Furthermore, and with due respect, we do not concede that
the Committee has the authority, constitutional or otherwise,
to seek the information sought in its September 14th letters
or to compel production or compliance by Mr. Novelly. We
explicitly reserve any and all rights Mr. Novelly may have to
object to such requests.
Nevertheless, in the interest of cooperation and to
minimize the further expenditure of time and money, below is
a description of the two instances where we are informed that
Mr. Novelly provided something of ``value'' to Justice Thomas
as defined by and requested in your letter that Mr. Novelly's
staff was able to locate.
1. August 22, 2016--a one-way return flight from Jackson
Hole, Wyoming to Washington, D.C. by Justice Thomas, his wife
and Senator Joseph Manchin and his wife, who were dropped off
in Charleston, West Virginia after attending a social
function attended by a number of members of the Horatio Alger
Association among others, including Terrence Giroux, the
Executive Director of the Horatio Alger Association, who was
also a passenger on the flight from Jackson Hole, Wyoming to
Washington, D.C.;
2. March 30, 2018--a one-way flight, by Justice Thomas and
his security detail from Ft. Lauderdale, Florida to
Washington D.C. The Justice and Mr. Novelly were attending
the funeral services for a mutual friend and Horatio Alger
Association member.
These airplane trips are the sole instances of which Mr.
Novelly and his staff are aware that may be responsive to
your requests.
We trust that Mr. Novelly's voluntary cooperation and
provision of this information will end any further inquiry of
Mr. Novelly.
Respectfully submitted,
Dennis J. Block,
On behalf of Paul Anthony Novelly.
____

Erickson | Sederstrom,

Attorneys at Law,

November 6, 2023.
Re Response Robin P. Arkley, II.

Hon. Richard Durbin,
Chairman, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
Hon. Sheldon Whitehouse,
Chairman, Subcommittee on Federal Courts Oversights, Agency
Action and Federal Rights, U.S. Senate, Washington, DC.
Dear Senators Durbin and Whitehouse: Mr. Arkley has asked
that I provide you additional information in response to your
letter of July 11, 2023.
In response to your request for a list of any gifts,
payments and items of value exceeding $415, and all
transportation or lodging given by Mr. Arkley, or by entities
owned or controlled by him, or for which he has served as a
partner, director, or officer, to any Justice of the Supreme
Court or a member of the Justice's family, he recalls only
two items, which have both already been reported on:
In 2008, Justice Samuel Alito attended a fishing trip and
stayed at King Salmon Lodge (``Lodge'') in King Salmon,
Alaska. The Lodge was owned by Mr. Arkley's company, Security
National Master Holding Company (``Company''). For the period
of time that the Company owned the Lodge, Mr. Arkley hosted
dozens of employees and friends. He sold the Lodge more than
a decade ago.
In addition to a number of friends he invited who were
personal friends from his hometown or from college, Mr.
Arkley also invited Mr. Leonard Leo, a friend through his
association with the Federalist Society. After one of his
conversations with Leonard, Mr. Arkley invited a number of
Mr. Leo's friends to join the trip, including Justice Samuel
Alito, Judge Ray Randolph, Mr. Paul Singer, and Mr. John
Fund. To the best of Mr. Arkley's recollection, the trip
lasted three or four nights. As he had done with other
friends and guests who stayed at the Lodge, Mr. Arkley
covered the expenses for the lodging, meals, and costs
associated with the fishing expeditions.
Mr. Arkley did not provide Justice Alito transportation to
or from the Lodge.
In 2005, Mr. Arkley invited Mr. Leo and Justice Antonin
Scalia on a fishing trip in Alaska, in addition to inviting a
number of friends from his hometown and college. His
recollection is that he provided air travel on his private
aircraft for Justice Scalia and Mr. Leo from the continental
United States to Alaska. To the best of Mr. Arkley's
recollection, they stayed at the Karluk Lodge and fished in
the Karluk River. As the fishing was poor, they travelled to
the Situk River to fish and stayed at another lodge. The trip
was four to five days, and Mr. Arkley paid all expenses for
those who were his guests on this trip.
With respect to your requests for the itinerary or costs
associated with these trips, Mr. Arkley does not have that
information. The private aircraft owned by the Company during
the relevant period was sold ten years ago and records of its
use are unavailable. Further, in accordance with industry
standards, the Company has had a long-standing retention
policy, originally adopted in 2008, that requires all
records, not subject to litigation holds, be disposed of
after seven years. As these two trips occurred well after
that timeframe, no company records exist. Mr. Arkley also
does not have any personal records regarding these two trips.
These are the only two items that are relevant to your
request for information.
While we continue to believe the Committee's request for
this information exceeds its constitutional authority, as set
forth in letters of July 25, 2023, and October 18, 2023. Mr.

[[Page S6046]]

Arkley has provided this information in an effort to be
cooperative and put this matter behind him. I trust that this
does so. Nevertheless, we reserve all rights to object to the
Committee's request for any additional information.
Thank you for your attention to this matter.
Sincerely,
Samuel E. Clark.
____

November 7, 2023.
Dear Committee: I have reviewed the letter dated November
6, 2023, prepared and signed by my counsel, Samuel Clark. The
letter reflects my recollection of the individuals and dates
of the fishing trips. Any other contact that I may have had
with the relevant individual referenced in your July 11, 2023
letter does not fall within the scope of your request,
including that I have not provided any gift over the $415
threshold to any relevant person.
In order to refresh my recollection and to provide the
requested information, my staff searched for any responsive
records. As my counsel noted in his letter, my company has a
retention policy in place that requires the disposal of all
records, not subject to any litigation hold, after 7 years.
Thus, there are no responsive records. Additionally, I
searched my records and found no responsive records.
Sincerely,
Robin P. Arkley II.

Mr. WHITEHOUSE. I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Warnock). Without objection, it is so
ordered.

____________________