“I keep calling on Chief Justice Roberts to make a move and say something and solve this problem,” Durbin told host Jake Tapper. “He has the power to do it for the Roberts Court. But other justices can speak out as well.”
Durbin also said “everything is on the table” but didn’t offer any solutions that Congress could undertake on its own to impose policies on ethics for the nation’s highest court. But he said a strong policy is definitely needed to rebuild the court’s credibility.
“We need to change the image of this court. At this point it is at the lowest ebb in history,” Durbin said.
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“There’s nothing new in this statement. The statement is a lot of handwaving,” said Kathleen Clark, a law professor and expert on legal ethics at Washington University in St. Louis. “The problem is not with foundational ethics principles. The problem is there’s no accountability for violating the law. And there’s nothing in this statement that suggests the court even understands what the problem is.”
The statement, consisting of three pages of text and two pages of citations, was attached to a short letter that Roberts sent to Durbin declining to appear at a Senate Judiciary hearing on Supreme Court ethics.
“This statement aims to provide new clarity to the bar and to the public on how the Justices address certain recurring issues, and also seeks to dispel some common misconceptions,” the justices’ pronouncement says. It largely echoes previous commitments the justices have made about financial disclosures and recusal practices, and it says the justices “consult” various non-binding sources when faced with ethical issues.
The push for ethics reform at the Supreme Court is intensifying after recent revelations about Justice Clarence Thomas’ relationship with a Republican megadonor and Justice Neil Gorsuch’s sale of a property to the head of a law firm with business before the court.
Sens. Angus King (I-Maine) and Lisa Murkowski (R-Alaska) introduced a bill Wednesday that would require the high court to adopt a code of conduct within a year. It’s a bipartisan boost for a court-reform movement that has largely been led by Democrats — though like prior efforts to enact a Supreme Court code of conduct, the bill has little chance of passage.
Sen. Sheldon Whitehouse (D-R.I.), a longtime critic of the court’s ethics practices, derided the court’s latest attempt to assure Congress and the public that it can largely police itself.
“This new statement of principles has virtually no utility,” he said. “There is still no inbox to file a complaint, no process for fact finding, no way of making ethics determinations, and thus no way of holding justices accountable.”
Durbin, who chairs the Senate Judiciary Committee, was a bit less confrontational, but said the high court’s response further demonstrates the need for court-reform legislation.
“I am surprised that the Chief Justice’s recounting of existing legal standards of ethics suggests current law is adequate and ignores the obvious,” Durbin said. “It is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of our government without it.”
The Supreme Court seldom comments publicly about its ethics practices.
In 2019, Justice Elena Kagan told a House subcommittee that Roberts was actively considering whether the court should adopt a formal ethics code.
“The chief justice is studying the question of whether to have a code of judicial conduct that’s applicable only to the United States Supreme Court,” Kagan told lawmakers at the time. “That has pros and cons, I’m sure, but it’s something that is being thought very seriously about.”
The court has provided no further update about the adoption of any ethics code since then, and Tuesday’s statement from the court seems to confirm that the effort petered out.
In fact, the new statement closely tracks a 2011 exposition from Roberts on the subject. Writing in his year-end report on the judiciary, he defended the lack of a binding code of conduct for the Supreme Court. Like Roberts’ 2011 comments, Tuesday’s statement invokes the court’s “unique” qualities and institutional interests.
Before this week, the last time the justices issued a joint statement about their own ethics practices appears to have been in 1993, when seven justices published a “Statement of Recusal Policy” about cases that might involve attorneys in their families or law firms employing those relatives. The absence of two justices from that declaration appeared to stem not from disagreement but from the fact those jurists didn’t have relatives working as lawyers.
Two years before that, the court issued a resolution in which the justices agreed to abide by regulations on gifts and outside income adopted by the Judicial Conference of the United States, a body created by Congress to write rules for federal courts.
More recently, the court put out a rare joint statement deploring the disclosure to POLITICO of a draft majority opinion overturning Roe v. Wade. In the statement — issued in January and apparently on behalf of all nine justices — the court called the breach of confidentiality “a grave assault on the judicial process” and an “extraordinary betrayal of trust,” but also said the court had been unable to determine the source of the draft, which was largely identical to the majority opinion the court issued last June ending the federal constitutional right to abortion after nearly a half-century.
The decision overturning Roe and the recent string of ethics controversies — including reports of efforts to lobby justices through meals, vacations and social events — likely have contributed to declining public trust in the court. Only 37% of Americans have a “great deal” or “quite a lot” of confidence in the Supreme Court, according a new poll released Monday by NPR, PBS NewsHour and the Marist Institute for Public Opinion. That’s the lowest number since the poll began asking the question in 2018.
Clark, the legal ethics expert, said the court’s new statement on Tuesday has a face-saving quality to it, but will not accomplish what the justices appear to have intended.
“These folks are politicians. They’re absolutely politicians, so they apparently thought signing their names, all nine of them, to this two-plus-page statement was better than not doing it,” she said. “There’s no reason to think these folks are going to start being accountable until Congress takes some action. They’re going to have to be dragged kicking and screaming into the post-Watergate accountability world.”
Tuesday’s statement does raise one new issue not contained in previous court statements on ethics: fears for the justices’ safety.
“Judges at all levels face increased threats to personal safety. These threats are magnified with respect to Members of the Supreme Court, given the higher profile of the matters they address,” the justices wrote. “Recent episodes confirm that such dangers are not merely hypothetical. … Matters considered here concerning issues such as travel, accommodations, and disclosure may at times have to take into account security guidance.”
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But a Durbin spokesperson told POLITICO Tuesday that Roberts declined to appear for the hearing. Durbin has previously said he plans for the hearing to proceed even if Roberts declined to appear.
“I am surprised that the Chief Justice’s recounting of existing legal standards of ethics suggests current law is adequate and ignores the obvious. The actions of one Justice, including trips on yachts and private jets, were not reported to the public. That same Justice failed to disclose the sale of properties he partly owned to a party with interests before the Supreme Court,” Durbin said in the statement.
He added: “It is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of our government without it.”
In a letter to Durbin explaining his reasons for declining, Roberts wrote that a chief justice’s testimony before Congress “is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”
Durbin, who is also the majority whip, has previously suggested the committee cannot subpoena Roberts because of the absence of Sen. Dianne Feinstein , a longtime Judiciary Committee member who has been away from the Senate for months while being treated for shingles.
The ProPublica report detailed two decades of Thomas’ relationship with Crow, which included trips on Crow’s private jet and yacht, as well as visits to Crow’s lavish properties.
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“The time has come for a new public conversation on ways to restore confidence in the Court’s ethical standards. I invite you to join it,” Durbin added.
A Supreme Court spokesperson did not immediately respond to an inquiry about whether Roberts plans to accept Durbin’s invitation.
Asked by reporters Thursday if he planned a subpoena for the chief justice if he does not agree to appear voluntarily, Durbin appeared to allude to Democrats’ ongoing difficulties related to the absence of Sen. Dianne Feinstein (D-Calif.), a longtime Judiciary committee member who has been absent from the Senate for months for medical reasons.
“It takes a majority. I don’t have a majority,” Durbin said bluntly, adding that he was hopeful Roberts would agree. “There’s been no discussion of subpoenas for anyone at this point.”
One Republican on the panel, Sen. Thom Tillis of South Carolina, expressed concern that a hearing with Roberts could wind up in a slugfest over issues unrelated to ethics practices at the court.
“You could quickly see it become a political show from either end of the spectrum,” Tillis said. “We could see it devolve into something that had nothing to do with the subject matter.”
Tillis also said the justices should be the ones deciding how to address ethics complaints and he questioned whether the high court’s standing with the public has, in fact, eroded.
“They themselves need to decide what, if anything, they need to do to restore any confidence that they think that they’ve lost, if in fact they think they’ve lost it,” Tillis said.
Durbin’s letter said Roberts “would not be expected to answer questions from Senators” about matters other than ethics, but it seems unlikely Durbin could prevent his colleagues from using a hearing to air such questions.
The Judiciary chair also offered an alternative, if Roberts doesn’t want to attend himself: He could send another justice in his place.
The Supreme Court is not bound by the code of ethics that applies to other federal judges and has no formal process to review ethics complaints. Roberts has said that the justices consult the ethics code for judges and also rely on various other authorities in deciding how to address ethics issues.
Democratic lawmakers have proposed imposing an ethics code and process on the Supreme Court by legislation, if the court does not craft such reforms itself.
The last appearance before a congressional committee by members of the Supreme Court came in 2019, when Justices Samuel Alito and Elena Kagan attended a House Appropriations subcommittee hearing on the high court’s budget.
Kagan said at that hearing that the justices were discussing an ethics code, but in the four years since no such regime has been adopted by the high court.
Durbin noted in his letter, and to reporters, that a pair of justices – Antonin Scalia and Stephen Breyer – testified to the Judiciary panel in 2011. “There’s precedent for this,” the senator said.
The call for Roberts to testify comes in the wake of reports by ProPublica about Thomas’ frequent vacationing, sometimes on private jets, with wealthy Texas real estate developer Harlan Crow, and about Crow’s purchase of Thomas’ childhood home and neighboring properties.
Thomas has said in a statement that he has attempted to abide by financial disclosure requirements that apply to all federal judges and that he was advised “personal hospitality” from Crow did not have to be disclosed. Thomas, the court’s oldest and longest-serving justice, has not commented on the sale of his mother’s home to Crow or why it was not reported.
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Earlier in the day, when asked if he’d consider subpoenaing Thomas for his testimony, Durbin told reporters that his panel would “talk about a number of options.”
Thomas’ behavior was “high on the list” of topics discussed Monday evening, said Blumenthal, who added that there is no final decision yet on who else should testify.
Durbin has not yet confirmed that Thomas would be asked to testify. Any subpoena that Democrats might issue, should the justice turn down such an invitation, would likely be challenged and could end up before Thomas and his colleagues at the high court.
Judiciary Democrats already sent a letter to Chief Justice John Roberts urging him to investigate Thomas’ undisclosed acceptance of luxury travel and gifts from wealthy GOP donor Harlan Crow. Later reports from ProPublica delved into the sale to Crow of three Georgia properties, including the home where Thomas’ mother currently lives.
“What he did is really unprecedented, the magnitude of the gifts and luxury travel but the money changing hands and the nondisclosure,” said Blumenthal.
Senators are still hoping that the Supreme Court will take its own action, but Durbin said his panel was also open to discussing proposals to impose a formal code of ethics on the court.
“This reflects on the integrity of the Supreme Court. [Roberts] should take the initiative and initiate his own investigation and promise results that answer this problem directly,” the chair said on Monday.
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Nikki Fried, the chair of the Democratic Party, filed a complaint late last week with the Florida Commission on Ethics that alleges that the committee’s spending violates a Florida law that bars spending money on activities that are unrelated to the political work of the committee. The committee was initially set up to aid DeSantis in his race for governor.
“This is yet another example of Ron DeSantis arrogantly thinking he is above the law. No one is above the law,” Fried said. “While Floridians face some of the highest property insurance and mortgage rates in the state’s history, DeSantis is hobnobbing with special interest donors and lining his pockets with freebies.”
Taryn Fenske, a spokesperson for DeSantis, quickly dismissed the complaint, which is similar to one filed earlier this month by a super PAC that supports former President Donald Trump.
“Just like the one from two weeks ago, we’ll just add this to the list of frivolous & politically motivated attacks,” Fenske said on Twitter. “Louder for the Dems in the back: It’s inappropriate to use ethics complaints for partisan purposes.”
Evan Power, the vice chair of the Republican Party of Florida who had filed an ethics complaint against Fried when she was still agriculture commissioner, lashed out as well.
“Nikki Fried filing an ethics complaint is like asking Freddy [Krueger] to set up a first aid tent,” Power said in a statement. The ethics commission this month agreed to drop the case against Fried.
The brief complaint filed by the Democratic Party is much more focused than the one outlined by the head of Make America Great Again, the super PAC backing Trump. It contends that other improper spending by the committee also includes $142,000 spent on an event at a Miami hotel, along with nearly $12,000 spent at a Miami steak restaurant as well as money spent on DeSantis merchandise like promotional tumblers and t-shirts.
In Florida, political committees can accept unlimited donations from any donor. And in the past, the state panels that regulate ethics and campaign finance have given wide latitude on the type of spending allowed by these committees.
DeSantis is expected to formally launch a run for president later this year, and he has been holding events to promote his new memoir — and his “Florida blueprint” — in events both in Florida and select states including Iowa and Nevada.
The ethics complaints filed against DeSantis and his political committee may not be resolved quickly. The process can take months for the ethics commission to determine whether there is a legal basis for the complaint and to investigate it.
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The admonition is centered on a nine-minute interview with Fox News in the Russell rotunda on November 30, 2022, in which Graham directly solicited campaign contributions on behalf of Walker, mentioning his campaign website five separate times.
“Go to team Herschel.com. If you can give five or ten bucks, it will help him close the gap,” referring to Walker, the GOP candidate who eventually lost to Democrat Raphael Warnock in Georgia’s December 6th Senate run-off.
“It was a mistake. I take responsibility. I will try to do better in the future” Graham said in a statement to POLITICO on Thursday evening.
Following the November interview, Graham promptly contacted Coons and Lankford to express regrets that he had not fully considered the impacts of the interview being conducted on federal property.
The public action against Graham is based on it being a repeat offense. The letter reveals that on October 14, 2020, Graham directly solicited campaign contributions for his own campaign committee during an interview in a Dirksen hallway following a Judiciary Committee hearing.
At the time, the Senate Ethics panel considered it a violation but given “several mitigating factors” determined the infraction “inadvertent, technical, or otherwise of a de minimis nature” and dismissed it with a private letter to Graham.
The last public letter of admonition issued by the panel was against Democratic Sen. Bob Menendez (N.J.) over his relationship with a close friend and donor, Dr. Salomon Melgen in 2018. It followed a mistrial in a federal corruption case against the New Jersey Democrat. Before that, the last senator to receive a formal admonishment from the panel was former GOP Sen. Tom Coburn of Oklahoma in 2012.
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“The House Committee on Ethics has opened an investigation, and Congressman George Santos is fully cooperating. There will be no further comment made at this time,” Santos said in a tweet.
Santos has faced a litany of ethical questions after revelations he lied about core components of his educational and professional background. Multiple New York Republicans have called for his resignation — or expulsion — from Congress in light of the scandals.
“George Santos has disgraced Holocaust victims, 9-11 victims, military veterans with PTSD and many more,” first-term Rep. Nick LaLota (R-N.Y.) tweeted on Wednesday. “Santos is a terrible person and should be thrown out of the Republican conference & Congress ASAP.”
House colleagues have filed Ethics claims against him, most publicly fellow New York Reps. Ritchie Torres and Daniel Goldman, both Democrats. Their claims include questions about Santos’ campaign finances and financial disclosure reports, as well as allegations that he “misled voters in his District about his ethnicity, his religion, his education, and his employment and professional history, among other things.”
The first-term Republican from New York has remained defiant and repeatedly vowed not to resign, though Santos did voluntarily give up his committee slots. A poll released Monday found 66 percent of voters statewide wanted him to resign.
House Ethics is just the latest to add to the Santos inquiry pileup, with the panel only fully organizing earlier this week. Federal prosecutors in the U.S. Attorney’s Office for the Eastern District of New York are also reportedly investigating him, and the Campaign Legal Center filed a complaint with the Federal Election Commission calling for a probe into the embattled Republican. New York Attorney General Tish James said her team would review Santos’ false claims. And Anne Donnelly, the Republican district attorney in Nassau County, said her office is “looking into the matter.”
The competing inquiries could draw out what is already a very slow process within House Ethics. It is common for the Department of Justice to ask the House or Senate Ethics panels to hit pause on their inquiries while a federal investigation plays out. But even if they don’t, Ethics investigations typically take many months.
House Ethics also said that they are extending their preliminary review of allegations against Rep. Alexandria Ocasio-Cortez (D-N.Y.), related to allegations of rule violations related to the 2021 Met Gala. The preliminary review means an investigative subcommittee has not been established and her case remains in the early stages of inquiry.
Ocasio-Cortez’s case was first referred to House Ethics back in June 2021 by the Office of Congressional Ethics, the nonpartisan, independent body that reviews allegations of misconduct involving House staff and lawmakers and refers cases to the House panel. The Ethics Committee also extended their review in early December last year.
OCE found that there were delays in some payments to vendors associated with the congresswoman’s visit to the Met Gala.
“The Congresswoman finds these delays unacceptable, and she has taken several steps to ensure nothing of this nature will happen again,” her spokesperson Lauren Hitt said on Thursday. “While regrettable, these delayed payments definitively do not rise to the level of a violation of House Rules.”
The payments were finalized and paid out of Ocasio-Cortez’ personal funds.
“We are confident the Ethics Committee will dismiss this matter,” Hitt said.
Nicholas Wu contributed to this report.
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