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Floor Speech

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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, 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.

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 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.

Re Response to Letter Dated July 11, 2023, to Robin P. Arkley, II, Our File No.: 00018.010802. 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 Chairman Durbin and Senator Whitehouse: We write this letter on behalf of Robin P. Arkley, II in response to your letter dated July 11, 2023, which requested information concerning Mr. Arkley's interactions with Supreme Court Justices. While we respect the Senate Committee's oversight role, we believe that this inquiry exceeds the limits placed on the legislature by the Constitution. For our stated reasons, we refer you to the relevant portions of the letter dated July 25, 2023, from Baker & Hostetler directed to you on behalf of Mr. Leo.

Thank you very much. Sincerely, Samuel E. Clark. ____ 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. 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 Chairman Durbin and Senator Whitehouse: This letter is written in response to your letter dated October 5, 2023.

Mr. Arkley reaffirms his position that, as a private citizen whose hospitality was wholly unrelated to the business of the Supreme Court, there is no legislative purpose that requires him to report the same to your Committee. If the law required or should require a government official to report hospitality or travel, that certainly does not apply to Mr. Arkley, and you should take the matter up with that official.

Your request that Mr. Arkley further provide the names of friends to whom he might have provided hospitality is without purpose and suggests that presence at a private social occasion at which no official public business was discussed or undertaken somehow subjects one to congressional scrutiny. This is an unreasonable affront on a citizen's privacy.

Mr. Arkley is not accused of violating any laws, has no disclosure duties, and has nothing to add beyond what has already been reported in the press. We must respectfully decline to respond to your request for the names and circumstances surrounding his personal hospitality. Sincerely, Samuel E. Clark. ____ 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. 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.

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