October 19, 2023

David B. Rivkin, Jr.

direct dial: 202.861.1731
[email protected]

VIA ELECTRONIC MAIL

The Honorable Richard Durbin

Chairman
Senate Judiciary Committee
United States Senate
221 Dirksen Senate Office Building
Washington, D.C. 20510

Re: Response to October 5, 2023, Letter to Leonard Leo

Dear Chairman Durbin:

We write on behalf of Leonard Leo in response to your letter of October 5, 2023, which,
after a delay of approximately two and a half months, responded to our letter of July 25. In our
July 25 letter, we raised various legal objections to the Committee’s requests for information
from Mr. Leo about his interactions with Supreme Court Justices. The October 5 Letter asserts
that we “do not have a proper basis to withhold information from Congress.” However, the letter
is largely silent as to why our objections are supposedly unfounded, leaving us with only the
Committee’s ipse dixit that we are obligated to turn over the extensive and sensitive personal
information it seeks.
We have put forward clear and detailed reasons why the Committee’s inquiry is a form of
political retaliation in violation of the First Amendment and the Equal Protection component of
the Due Process Clause. But, for the most part, the October 5 Letter ignores these points, and,
since our last correspondence, the Committee has only expanded the retaliatory campaign it is
mounting against Mr. Leo. We also have explained at length why the Supreme Court ethics
legislation the Committee has written would violate the separation of powers if enacted, and thus
cannot legitimate the Committee’s inquiry. But the October 5 Letter offers virtually nothing in
the way of rebuttal, and the Committee continues to press forward with its unconstitutional bill.
Across the board, the October 5 Letter tries to shield the Committee’s inquiry from our
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October 19, 2023
Page 2

objections by simply acting as though they do not exist. Because we continue to believe that the
Committee is not entitled to the personal information it seeks, and because the Committee has
provided us with no arguments to the contrary, we respectfully decline to provide such
information today.

The October 5 Letter Fails to Address the Significant and Intensifying Retaliatory Acts in
which the Committee Is Engaged
In our July 25 Letter, we noted what is obvious to anyone who has been following the
Committee’s investigation. The Committee is engaged in a partisan project conducted only
superficially in support of its efforts to write a bill that has already been written; that has no chance
of ever becoming law; and that, if somehow enacted, would be peremptorily struck down as
unconstitutional. The shallowness of the Committee’s supposed legislative purpose clearly
manifests the Committee’s true aims. In actuality, the Committee is out to smear, impugn, and
punish Mr. Leo, because the Committee Democrats do not like his political advocacy, and they
want to shut it down. That much is clear from many public statements the Committee Democrats
have made; the politically one-sided tack they have taken in charting their investigation; and the
internal contradictions of their supposed legislative purpose.
Contrary to the October 5 Letter’s bald assertion, these are not “frivolous” claims. The
Letter’s complete failure to answer our objections shows that the Committee has no answers to
give. In our July 25 Letter, we quote a multiplicity of statements from Committee Democrats that
plainly demonstrate deeply harbored animus toward Mr. Leo and his expressive activities.
Nowhere in its October 5 response does the Committee even acknowledge these statements, let
alone attempt to explain how the statements, taken together with the Committee’s highly
burdensome demands for information, are not a textbook example of First Amendment retaliation.
Indeed, since our July 25 Letter, the Committee Democrats have intensified their rhetorical attacks
on Mr. Leo’s conservative views and constitutionally protected speech.
• On September 12, 2023, Chairman Durbin said that “[d]ark money continues to be a dire
threat to American democracy and the integrity of the Supreme Court,” and that “Leonard
Leo and a gaggle of fawning billionaires” have worked to “form a calculated financial
scheme, capitalize on the forthcoming Citizens United decision, and influence the Supreme
Court at the expense of its reputation.” Senator Richard Durbin, Durbin Statement On
Calculated Dark Money Scheme Targeting The Supreme Court By Ginni Thomas, Leonard
Leo, And Network Of Billionaires (Sept. 12, 2023). These statements were echoed on the
Committee Democrats’ official social media channels. Senate Judiciary Committee,
Twitter (Sep. 11, 2023).

• On October 12, 2023, Senator Whitehouse said that “the ubiquitous fixer Leonard Leo” is
part of a “filthy web of dark money, right-wing billionaires, compliant Supreme Court
Justices.” Senator Sheldon Whitehouse, Twitter (Oct. 12, 2023).

• On September 25, 2023, Senator Whitehouse claimed that “Leo orchestrates gifts and free
travel from right-wing billionaires to FedSoc justices” in order to facilitate “right-wing
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October 19, 2023
Page 3

billionaire[s’] ‘care-and-feeding-of-FedSoc-justices.” Senator Sheldon Whitehouse,

Twitter (Sept. 25, 2023).

These new statements, along with the ones cited in our July 25 Letter and many others,
remove any doubt, if there was any to begin with, that the Committee is targeting Mr. Leo out of
hostility toward his political views and associations. The Committee cannot just ignore these
statements, as it did in the October 5 Letter. Statements by government officials that “disparage”
and evince “clear . . . hostility” toward a person’s beliefs lead inescapably to the conclusion that
the officials’ actions are taken out of “animosity” toward a person’s protected activities.
Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719, 1729 (2018). Thus,
“expression[s] of opposition to . . . protected speech” demonstrate the animus necessary to
establish a claim of First Amendment retaliation. Boquist v. Courtney, 32 F.4th 764, 777 (9th Cir.
2022). Here, the amount of vitriol directed at Mr. Leo by leading members of the Committee on
account of his political activities makes uncontestable our conclusion that this inquiry is motivated
by unlawful animus.
The Committee Democrats’ statements are merely one of many indications that this inquiry
is driven by a desire to harass and silence Mr. Leo. Another hallmark of unlawful First Amendment
retaliation is an incongruity between what government officials say they are trying to accomplish
and what they actually do. “Underinclusiveness in [government actions] may reveal that motives
entirely inconsistent with the stated interest actually lie behind [the actions].” Republican Party
of Minnesota v. White, 416 F.3d 738, 757 (8th Cir. 2005). That squarely describes the manner in
which the Committee is conducting its inquiry.
The October 5 Letter states that the Committee seeks information from Mr. Leo in order to
gain a “comprehensive understanding” of the supposed risk that “parties with matters before the
Court [are] tak[ing] advantage of access to justices made possible by both disclosed and
undisclosed transportation, lodging, and other gifts.” As measured against that objective, the
means that the Committee has deployed to acquire a “comprehensive understanding” of the
influence peddling that they imagine is occurring at the Court clearly miss the mark.
If, as the October 5 Letter says, the supposed problem that concerns the Committee is
improper “access to justices,” then the Committee should be looking at the trips and events that
are disclosed by the Justices (or at least publicly known) every bit as much as those that are not.
Indeed, the October 5 Letter itself states that the Committee is interested in access “made possible
by both disclosed and undisclosed” gifts and travel. (Emphasis added). In recent years, Justices
Stephen Breyer, Ruth Bader Ginsburg, Ketanji Brown Jackson, Elena Kagan, and Sonia
Sotomayor have disclosed hundreds of trips and events involving progressive legal and policy
organizations, elite law schools, bar associations, and other legal membership groups. These
institutions and organizations are almost exclusively governed and populated by the Left, and the
attendees at their events are predominantly influential liberals. If the Committee were actually
pursuing the inquiry it claims, these frequent trips and events would be of at least as much interest
to the Committee as a fishing excursion Mr. Leo took with Justice Alito 15 years ago. In fact, there
is every reason to believe that the countless private and social conversations that take place
between Justices and legal or policy thought leaders and advocates at events sponsored by
institutions such as the Aspen Institute, Planned Parenthood, Yale and Harvard Law Schools, the
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October 19, 2023
Page 4

American Bar Association, and the American Constitution Society are more consequential than
instances of hospitality extended to the Justices by and amongst friends.
The Committee insists that it needs information about events, trips, and private hospitality
extended to Justices Clarence Thomas and Samuel Alito, but, at the same time, shows absolutely
no interest in Justice Ginsburg’s visit to a Planned Parenthood event; or an invitation-only,
privately funded event at the Library of Congress celebrating Justice Jackson’s investiture; or
Justice Sotomayor’s visit to the American Constitution Society; or Justice Breyer’s many trips to
the Aspen Ideas Festival. The fact that attendance at those events was disclosed or publicly known
says nothing about what occurred at those gatherings, why the Justices were invited to attend, who
else attended the events, what interests those other attendees had in matters pending before the
Court, or what subjects were raised with the Justices by those other attendees. The same is true of
the numerous visits those same Justices have made to the most Left-of-center law schools and
lawyers’ membership groups in America, which are populated by many individuals with significant
interests and participation in the work of the Court, and who certainly had access to the Justices
during the Justices’ visits.
Beyond events and trips, there are other activities of the Democrat-nominated Justices to
which the Committee has turned a blind eye, despite significant media coverage of those activities.
For example, there has been considerable press attention given to the “RBG” documentary in
which Justice Ginsburg participated that was released right before the 2018 midterm elections—a
far more recent and significant event than a 2008 fishing trip. Participant Media, which purchased
the distribution rights for the documentary, was founded by billionaire Jeffrey Skoll “to bring you
the most politically charged movies of the year.” Scott Tobias, Participant Media Wants to Bring
You the Most Politically Charged Movies of the Year, GQ (Sept. 17, 2015). Further, Mr. Skoll is a
known political activist. His philanthropic enterprises have given more than $27 million to
Arabella Advisers’ Leftwing dark money network. On these facts, Mr. Skoll’s political activism
clearly raises questions about his unparalleled access to and collaboration with a sitting Justice that
would be of interest to the Committee if it were actually engaged in the legislative work it claims.
Another item that would, by any fair assessment, be of interest to the Committee if it cared
about supposed influence peddling at the Court is Justice Ginsburg’s receipt of a $1 million prize
awarded by the Berggruen Institute. This is, by far, the largest gift that any Justice has disclosed
over the past two decades. The announcement of the award states that Justice Ginsburg would
direct the $1 million “to charitable or non-profit organizations that she designates.” Rachel Bauch,
Annual Berggruen Prize for Philosophy & Culture Awarded to U.S. Supreme Court Justice Ruth
Bader Ginsburg for Her Work in Pioneering Gender Equality and Strengthening the Rule of Law,
Berggruen Institute (Oct. 23, 2019). Since Justice Ginsburg’s death, the Institute has stated that
the list of recipients, “per her wishes, is not for publication.” Andrew Kerr, Ruth Bader Ginsburg’s
Mysterious $1 Million Prize, The Washington Free Beacon (July 19, 2023). Despite the award’s
obvious relevance to the Committee’s purported concerns, the Committee has made no inquiries
into what interests the Institute, its benefactor, or those on its prize selection committee might have
that are related to the work of the Supreme Court, or whether any of the prize money went to
groups with business before the Court. See Appendix, Representative Examples of Disclosed
Events for further examples and discussion. The Committee has instead decided to focus
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October 19, 2023
Page 5

exclusively on the private social interactions of Republican-appointed Justices with personal

friends who happen to be conservatives.
In sum, the investigation in which the Committee is engaged is so “woefully underinclusive
as to render belief in [its] [stated] purpose a challenge to the credulous.” Republican Party of
Minnesota v. White, 536 U.S. 765, 780 (2002). The chasm between what the Committee says it is
doing and what it is actually doing is immense. Indeed, even in its own letter, the Committee
cannot keep its story straight. The October 5 Letter’s meager response to our previous recitation
of instances where Democrat-nominated Justices could possibly have been exposed to improper
influence peddling—and why those instances clearly implicate the Committee’s supposed
concerns—is that “the Committee’s investigation focuses on the problem of undisclosed conduct.”
But, as already noted, the very next page of the letter states that the primary issue on which the
Committee has trained its attention is untoward “access to justices made possible by both disclosed
and undisclosed transportation, lodging, and other gifts.” (Emphasis added). So which is it? The
truth is that it is neither. Whether disclosed or undisclosed, what the Committee clearly cares most
about is obtaining information that it believes will help it punish and embarrass people like Mr.
Leo with whom Committee Democrats have political disagreements. Because the Committee’s
“proffered explanation is unworthy of credence,” it “demonstrate[s] pretext,” which can only lead
to an inference of retaliatory motive. Alston v. Town of Brookline, 997 F.3d 23, 46 (1st Cir. 2021).
Another internal contradiction that characterizes the Committee’s inquiry is that the
objective in support of which the inquiry is supposedly being pursued has already been effected.
The Committee says that it wishes to solve an ethics problem at the Supreme Court, and Committee
Democrats have described S. 359, the Supreme Court Ethics, Recusal, and Transparency
(“SCERT”) Act of 2023, as the “comprehensive” solution to that problem. Senator Sheldon
Whitehouse, Remarks at Executive Meeting of Senate Judiciary Committee (July 20, 2023). But
the SCERT Act has already been reported out of Committee. See Supreme Court Ethics, Recusal,
and Transparency Act of 2023, S. 359, 117th Cong. (as reported by S. Comm. on the Judiciary,
Sept. 5, 2023). Logically, that means the Committee must have concluded that it already had
enough information to make an informed legislative decision about what kinds of ethics reforms
are needed. Despite this, the Committee’s investigation carries on, and a renewed request for
information has been lodged months after the Committee voted to report the bill out of committee.
The sequencing of bill writing, bill consideration, and bill reporting followed by purported factual
investigation is odd, to put it charitably.
Another oddity of the timing of the Committee’s inquiry is that the renewed request for
information comes more than two months after our last correspondence with the Committee. If
the ethics issues on which the Committee purports to be fixated did in fact present “a dire threat to
American democracy,” a greater sense of urgency would be expected. Senator Richard Durbin,
Press Release: Durbin Statement On Calculated Dark Money Scheme Targeting The Supreme
Court By Ginni Thomas, Leonard Leo, And Network Of Billionaires (Sept. 12, 2023). Again, the
contradiction between the Committee’s words and actions is stark.
The Committee’s inquiry is defined by internal inconsistencies, over the top accusations of
misconduct, and a myopic focus on one side of the political aisle that likely has more to do with
soliciting donations for reelection campaigns than securing information that might assist in the
discharge of the Committee’s lawmaking responsibilities. From top to bottom, the inquiry is a
The Honorable Richard Durbin
October 19, 2023
Page 6

political operation that is being advanced under the guise of a congressional investigation. Because
of the “implausibilities, inconsistencies, incoherencies, [and] contradictions in [the Committee’s]
proffered legitimate reasons” for its inquiry, the inference that Mr. Leo is being targeted because
of his expressive activities is unshakeable, and the October 5 Letter does not even try to rebut it.
Alston, 997 F.3d at 46. 1
The Committee Continues to Act Without a Valid Legislative Purpose
Critically, the Senate does not “possess[] the general power of making inquiry into the
private affairs of the citizen.” Kilbourn v. Thompson, 103 U.S. 168, 190 (1880). That limitation
on the Senate’s investigative powers is especially important where the inquiry into private matters
is made simply “to expose for the sake of exposure,” to harass and humiliate. Watkins v. United
States, 354 U.S. 178, 200 (1957). Where the “predominant result” of a congressional investigation
“can only be an invasion of the private rights of individuals,” the investigation cannot proceed for
lack of a legislative purpose. Id.
Here, the unnecessary disclosure of details about Mr. Leo’s private life is not just the
predominant intended result of the Committee’s inquiry, it is likely the only result. Any
information Mr. Leo might share with the Committee could not possibly aid in the drafting of a
bill that has already been reported out of Committee. Nor can the Committee plausibly claim that
information from Mr. Leo is needed to help write other ethics bills. The SCERT Act was—in
Committee Democrats’ own telling––their “comprehensive” solution to the imagined ethics crisis
at the Supreme Court, which makes this ongoing investigation an afterthought disjoined from any
actual legislative work. See Watkins, 354 U.S. at 187 (“No inquiry is an end in itself; it must be
related to, and in furtherance of, a legitimate task of the Congress.”).
Instead, as we have stressed, the Committee’s inquiry actually appears to be undertaken for
the unfortunate and improper purposes of scoring partisan points against a detested political
opponent and vilifying him in the court of public opinion. See Watkins, 354 U.S. at 187
(“Investigations conducted solely for the personal aggrandizement of the investigators or to
‘punish’ those investigated are indefensible.”). Dredging up content for inflammatory Tweets and
fundraising appeals that are circulated far and wide outside the Senate chamber is not a valid
legislative purpose. Cf. Doe v. McMillan, 412 U.S. 306, 314–15 (1973) (“[R]epublishing a libel .
. . is not an essential part of the legislative process.”). Similarly, the Committee’s attempt to
manufacture the appearance of wrongdoing on the part of Mr. Leo in connection with an alleged
“financial scheme” to “influence the Supreme Court,” and to set itself up as judge and jury of that
supposed wrongdoing, is not a valid legislative purpose; it is an attempted congressional
prosecution. See Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032 (2020) (“Congress may not
use subpoenas to ‘try’ someone ‘before [a] committee for . . . wrongdoing.’” (quoting McGrain v.
Daugherty, 273 U.S. 135, 179 (1927) (alteration in original)).
Further, even if the SCERT Act were still pending in Committee, our position would be the
same. The Committee cannot derive a valid legislative purpose from lawmaking activities that can

1
For similar reasons, our view that the Committee’s actions also constitute an Equal Protection violation has only
hardened in the intervening months since we last wrote the Committee. As with the points raised in our July 25 Letter
concerning First Amendment retaliation, the October 5 Letter neglects to address or respond to our Equal Protection
concerns.
The Honorable Richard Durbin
October 19, 2023
Page 7

only culminate in the enactment of an unconstitutional law. “[T]he power to investigate . . . does
[not] extend to an area in which Congress is forbidden to legislate.” Quinn v. United States, 349
U.S. 155, 161 (1955). In virtually every one of its provisions, the SCERT Act transgresses the
bounds placed on Congress by the Constitution. If enacted, it would be a dead letter in the courts,
and therefore cannot supply the Committee with the legislative purpose it needs to move forward
with its inquiry.
To take just one especially egregious example, the SCERT Act would force a Justice to
recuse from cases where the Justice “knows that a party to the proceeding or an affiliate of a party
to the proceeding made any lobbying contact . . . or spent substantial funds in support of the
nomination, confirmation, or appointment of the justice or judge,” or where the Justice “their
spouse, their minor child, or a privately held entity owned by any such person received income, a
gift, or reimbursement” “from a party to the proceeding or an affiliate of a party to the proceeding.”
S. 359 § 4. In addition, the bill would allow inferior court judges to investigate complaints made
against a Justice who failed to recuse in a given case and take disciplinary action if they conclude
a violation occurred. Id. § 2(a).
These provisions, if they were to ever become law, would be blatant usurpations by
Congress of the judicial power. See Loving v. United States, 517 U.S. 748, 757 (1996) (“[I]t
remains a basic principle of our constitutional scheme that one branch of the Government may not
intrude upon the central prerogatives of another.”). Recusal decisions, like other judicial
determinations, are made in the context of a case or controversy pending before the Court and have
historically been left to the discretion of the individual Justices. See Louis J. Virelli III, The
(Un)constitutionality of Supreme Court Recusal Standards, 2011 Wis. L. Rev. 1181, 1195 (2011).
Time and again, courts have described recusal decisions as a core “judicial function.” Caperton v.
A.T. Massey Coal Co., Inc., 556 U.S. 868, 882 (2009). That historical practice carries “significant
weight” when charting the lines that separate the respective powers of the coordinate branches of
government. NLRB v. Noel Canning, 573 U.S. 513, 524 (2014). In consequence, it is not within
Congress’s power to direct or regulate how recusal decisions are made. See United States v. Brown,
381 U.S. 437, 442 (1965) (“[T]he separation of powers” prohibits the “legislative exercise of the
judicial function.”).
Moreover, the notion that Congress could set up inferior court judges as overseers of
Supreme Court Justices’ conduct turns on its head the structure of the judicial branch ordained by
Article III of the Constitution. See U.S. Const. art. III, § 1. Article III does not create “a batch of
unconnected courts, but a judicial department, composed of ‘inferior Courts’ and ‘one supreme
Court,’” which serves as “the final word of the department as a whole” and is not answerable to
the courts below it. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227 (1995). By inverting this
structure, the SCERT Act would “impermissibly threaten[] the institutional integrity of the Judicial
Branch.” Mistretta v. United States, 488 U.S. 361, 383 (1989) (quoting Commodity Futures
Trading Comm’n v. Schor, 478 U.S. 833, 851 (1986)). It would be the equivalent of Congress
empowering subordinate executive branch officers to second-guess the President’s actions and
reprimand him where they disagreed with his conduct. Such an arrangement would plainly
“compromise the integrity of the system of separated powers and the role of the Judiciary in that
system.” Stern v. Marshall, 564 U.S. 462, 503 (2011).
The Honorable Richard Durbin
October 19, 2023
Page 8

As with the rest of its response to our legitimate concerns, the October 5 Letter makes only
a half-hearted gesture at grappling with the grave separation of powers issues that the Committee’s
actions implicate. The Letter gives as its rebuttal the solitary citation of Nixon v. Administrator of
General Services, 433 U.S. 425, 443 (1977), for the proposition that our position reflects an
“archaic view of the separation of powers as requiring three air-tight departments of government.”
The disconnect between that blithe assertion and the seriousness of our objections is striking. In
Nixon, the Court cautioned that the separation of powers is breached where Congress’s actions
create “undu[e] disrupti[on]” in the workings of another branch that prevents the other branch
“from accomplishing its constitutionally assigned functions.” Id. at 445. Just because the powers
of the federal government are not siloed in three “air-tight” departments does not mean that
Congress can insert itself into any and all functions that are assigned to the judicial branch. The
SCERT Act would intrude directly on core judicial functions, and therefore exceeds Congress’s
constitutional authority.
* * * * *
Speaking in another context, then-Attorney General Robert Jackson said that the “greatest
danger of abuse” of the government’s investigative power comes when government officials
“pick[] the man” “whom [they] dislike[] or desire[] to embarrass” and “then search[] the law books,
or put[] investigators to work, to pin some offense on him.” Robert H. Jackson, Address to the
Second Annual Conference of United States Attorneys (April 1, 1940). The Committee Democrats
have already made up their minds about Mr. Leo. In Committee Democrats’ imagining, Mr. Leo
is a “right-wing” “fixer” who sits atop a conspiracy to capture the Supreme Court and poses a “dire
threat to American democracy,” and they appear determined to use the Committee’s investigative
tools in an attempt to uncover evidence to substantiate those noxious beliefs, or at least to impose
immense and costly burdens on Mr. Leo in order to punish him for his disfavored views. It is not
our responsibility to aid in that partisan effort, and we choose not to do so today.

Sincerely,

David B. Rivkin, Jr.

Attorney for Leonard A. Leo