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Harlan Crow thinks he is the law

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Harlan Crow thinks he is the law

The billionaire and his lawyer apparently believe they get to stop congressional investigations if they so choose. Also: Hamburger Mary's sues DeSantis. And: Execution regrets.

Chris Geidner
May 23, 2023
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Harlan Crow thinks he is the law

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Gibson Dunn’s Michael D. Bopp on Monday informed the Senate Judiciary Committee that Harlan Crow — the Texas billionaire who pays for vacations for Justice Clarence Thomas and builds literal statues for the justice’s former teachers — doesn’t need to respond to the request from the committee’s Democrats for information about his relationship with Thomas.

What followed in the seven-page letter — first reported by Bloomberg and uploaded as a single document by Mark Joseph Stern here — was an astounding dismissal of congressional oversight. More than that, though, it was an offensive, implicit claim that Harlan Crow is not just a billionaire, not just friends with a justice, not just influential, but is the law.

After careful consideration, we do not believe the Committee has the authority to investigate Mr. Crow's personal friendship with Justice Clarence Thomas. Most importantly, Congress does not have the constitutional power to impose ethics rules and standards on the Supreme Court. Doing so would exceed Congress's Article I authority and violate basic separation of powers principles. That precludes the Committee from pursuing an investigation in support of such legislation.

Harlan Crow — through Gibson Dunn’s Michael D. Bopp — told Senate Judiciary Committee Chair Dick Durbin that he has decided what the law is and that Durbin has no “authority” here.

What’s more, Crow — through Bopp — has decided not just what the law is but what Congress can do. (He just needs to tell us what the president can do and he’d have a three-branch trifecta!)

Separately, the Committee has not identified a valid legislative purpose for its investigation and is not authorized to conduct an ethics investigation of a Supreme Court Justice.  The Committee's stated purpose of crafting new ethics guidelines for the Supreme Court is inconsistent with its actions and the circumstances in which this investigation was launched, all of which suggest that the Committee is targeting Justice Thomas for special and unwarranted opprobrium. Moreover, any information the Committee might legitimately need to draft Legislation on this subject is readily available from other sources, the use of which would not trigger the same separation of powers concerns created by the Committee's requests to Mr. Crow.

What is perhaps most remarkable about the letter is not even its dismissal of the congressional oversight request — which absolutely must be followed at the earliest possible moment by the committee’s issuance of a subpoena — but, rather, the underlying basis for that decision. In the letter, Bopp concludes — again, on Crow’s behalf — that “Congress lacks the authority” to pass ethics legislation relating to the Supreme Court.

‘TheCommittee’LettertoMr.Crow statesthattheCommitteesrequestispartofits The Committee's Letter to Mr. Crow states that the Committee's request is part of its “o "o n n g g o o i in n g ge e f f f fo or rt tt to oc c r ra af ft tl le e g gi is s l l a a t t io io n ns s t tr r e e n n g g t t h h e e n n i i n n g gt th h e ee e t th hi ic c a a l lr ru u l l e e s sa an n d ds s t ta a n n d d a a r r d d s st th h a a t ta a p p p p l ly yt to o theJusticesoftheSupremeCourt.” ButCongresslackstheauthoritytoenactsuch the Justices of the Supreme Court." But Congress lacks the authority to enact such L le e g gi is s l l a a t t i i o o n n . .A A s s y y o ou uk k n n o o w w . , C C o o n n g g r r e e s s s s m m a a y y a a c c t t o o n n l ly yp p u u r r s s u u a a n n t t t to ot its se e n n u u m m e e r r a a t te e d dp p o o w w e e r r s s . . S S e e e e M M ar ar b b u u r ry yv .v .M M ad ad i i s so o n n , .5 5 U U . .S S . . 1 1 3 3 7 7 , .1 17 7 6 6( (1 1 8 8 0 0 3 3) ) ( (" “ T T h h e ep p o o w w e e r r s s of of t th h e el le e g gi is s l l a a t t u u r r e ea ar r e ed d e e f fi i n n e e d d , .a an n d d l li i m mi i t te e d d: ; a an n d dt th ha a t t t th h o o s s e el li i m mi i t ts sm m a a y y n n o o t t b be em m i i s s t ta a k k e e n n , .o o r r f fo or rg g o ot tt t e e n n , .t th h e ec c o o n n s s t t i it t u u t t i i o o n ni is sw w r r i i t t t te e n n. ." ” ) ) . . N N o o n ne eo o f f t t h h o o s s e e e e n n u u m m e e r r a a t te e d dp p o o w w e e r rs si in n c c l l u u d d e e s st th h e ea a u u t t h h o o r r i it t y yt to or re e g gu u l la a t t e et th h e ei in n t t e e r m n a a l l a a f f f fa ai ir r s sa an n d d o o p p e e r r a a t ti i o o n n s so o f f t th h e eS S u u p pr r e e m m e eC C o o u u r r t t, ,a a c c o o e e q q u u a a l l b b r r a a n n c ch ho o f f g g o o v v e e r rn n m me e n n t t. .Se Se e e U U . .S S . .C C o o n n s s t t. .a a r rt t . . , I I § § 8 8. .L L i i k k e e w w i i s se e , . i i n nt th h e ea ab bs se e n n c c e eo of fa an n y ye en nu u m m e e r r a a t te e d dp po o w we er rt to o u u c c h h i i n n g go on nt th h e es su ub b j je e c c t t , .t th h e eN N e e c c e e s s s sa a r r y y a an n d dP P r r o o p p e e r r C C l l a au u s s e ec ca a n n n n o o t ts su up p p p o o r rt tt th h e ec c r re ea a t ti i o o n no of fa a S S u u p p r re e m m e eC C o o u u r r t t e e t th hi ic c s sc c o od d e eb by yt th h e e L le eg g i i s s l la a t t i i v v e eb b r ra a n n c c h h . .S S e ee eU U n n i i t te e d dS S t t a a t te e s s . v v .M M or o r r i ri s so o n n , .5 5 2 29 9U U . .S S . .$ 59 9 8 5 , .6 60 0 7 7( (2 2 0 0 0 0 0 0 ) )( (" “ E E v v e e r r y yl law aw e e n n a a c c t te e d db by yC C o o n n g g r r e e s ss sm m u u s s t t b be eb b a a s se e d do on no o n ne eo o r r m m o o r r e e o of fi it t s sp p o o w w e e r r s s e e n n u u m m e e r r a a t te e d di in nt th h e e C C o o ns n t s i t t it u u t t i io on n . . ” " ) ). . Moreover,evenifCongresshadthepowertoregulatetheSupremeCourt's Moreover, even fi Congress had the power to regulate the Supreme Count's i in n t t e e r r n n a a l la a f f f f a a i ir r s s , .t th h e ec c r re e a a t t i i o o n no o f f a an ne e t th hi ic c s sc co o d d e ew w o o u u l ld dt tr r a a n n s s g g r r e e s s s si im mp p o o r r t ta a n n t t s s e e p pa a r ra a t t i i o o n no of f ‘ p p o o w we e r rs sp p r r i in n c c i i p p l l e e s s , ,a an n d dt th h e e r r e e f f o o r r e eb be ea an ni im mp p r ro o p p e e r ru u s se co o f fC Co o n n g g r r e e s s s s ' 's sl la a w w m ma a k k i in n g ga a u u t t h h o o r r i it t y y . .S S e ee e N N at a ' t' l l F F e e d d ' 'n no o f f I In n d d e e p p . .B B u u s s. .v .v .S S e e b b e e l l i iu u s s , ,5 5 6 67 7U U . .S S . .$ 5 1 19 9 , ,5 55 5 9 9( (2 2 0 0 1 1 2 2 ) ) . .I nI nc c o o n n s se e q q u u e e n n c c e e , ,b b e e c ca a u u s s e ea a S S u u p p r re e m m e eC C o o u u r r t t e e t th hi ic c s sc co o d d e ei is sb b e ey y o o n n d d C Co o n n g g r r e e s s s s ' 's sp po o w we e r r t to ol le eg g i is s l l a a t t e e , ,t th h e eC C o o m m mi m t i t t e te e e : ‘ n n e e c c e e s s s s a a r r i i l l y yl la a c c k k s sa a u u t th ho o r ri i t t y yt to oc c o o n n d d u u c c t t a an ni in nv v e e s s t ti i g g a a t t i i o o n nf fo o r rt th h e e p pu u r rp p o os se eo o f f c c r r a a f f t t i in n g gs su u c c h ha a l la a w w . .

Bopp cannot state that as a matter of law — and dismiss Durbin’s request based on that knowledge. This is so because Chief Justice John Roberts himself has acknowledged that Congress has already passed ethics legislation that applies to the justices. What’s more, Roberts also explained in 2011 that the court has never addressed whether Congress can do so but that the justices “nevertheless comply with those provisions.”

B. Financial Disclosure and Gift Regulations In addition to establishing the Judicial Conference, Congress has enacted legislation addressing a number of specific ethical matters. In particular, Congress has directed Justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income. The Court has never addressed whether Congress may impose those requirements on the Supreme Court. The Justices nevertheless comply with those provisions.

In other words, what this letter from Gibson Dunn’s Michael D. Bopp on behalf of Harlan Crow means is that Crow the billionaire doesn’t even care whether the Supreme Court has decided to assert that it is exempt from statutory ethics rules.

Crow has told Durbin and the nation that he — a private person — can himself decide that the Supreme Court is exempt from statutory ethics rules and then can also decide that those limits he has created absolutely bar legislation from even being considered to address the Supreme Court’s ethics and that, because of those conclusions he has made, he can ignore Durbin’s requests.

Merely stating this makes clear that this cannot be allowed to stand.

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Hamburger Mary’s is coming for DeSantis

Hamburger Mary’s — a restaurant chain that hosts drag performances — filed a lawsuit in federal court on Monday challenging Florida’s S.B. 1438, the state’s new law criminalizing allowing children to attend certain drag performances. (I first saw the lawsuit via Click Orlando, which helpfully posted the complaint in its story.)

The lawsuit alleges that the new law violates the First Amendment, stating that it is “simply too vague and overbroad.” The restaurant filed a motion for a temporary restraining order and preliminary injunction along with the lawsuit.

U.S. District Judge Gregory Presnell, a Clinton appointee, has been assigned the case and issued an order Tuesday setting a hearing on the preliminary injunction request for June 6. Florida’s response to the injunction request is due by Jun 2.

(3) The Court will conduct a non-evidentiary hearing on the matter on June 6, 2023, at 1:30 p.m. in Courtroom 5A in the Orlando Federal Courthouse Annex, 401 West Central Boulevard, Orlando, Florida. DONE and ORDERED in Chambers, Orlando, Florida on May 23, 2023.

Although the law is framed as barring minors from being allowed into any “adult live performance,” Republican Florida Gov. Ron DeSantis and his administration have been targeting drag performances. The Associated Press stated it as fact that the new law is aimed at drag, and the law specifically includes coverage of “prosthetic or imitation genitals or breasts” to include coverage of drag even when no actual nudity is included.

96 827.11 Exposing children to an adult live performance.— 97 (1) As used in this section, the term: 98 (a) “Adult live performance” means any show, exhibition, or 99 other presentation in front of a live audience which, in whole 100 or in part, depicts or simulates nudity, sexual conduct, sexual 101 excitement, or specific sexual activities as those terms are 102 defined in s. 847.001, lewd conduct, or the lewd exposure of 103 prosthetic or imitation genitals or breasts when it: 104 1. Predominantly appeals to a prurient, shameful, or morbid 105 interest; 106 2. Is patently offensive to prevailing standards in the 107 adult community of this state as a whole with respect to what is 108 suitable material or conduct for the age of the child present; 109 and 110 3. Taken as a whole, is without serious literary, artistic, 111 political, or scientific value for the age of the child present.
A portion of S.B. 1438

The law makes violations a first-degree misdemeanor, subjecting those who violate it to up to a year in prison.


Alabama death penalty regrets

Finally, in The Washington Post, two former Alabama governors who oversaw executions, Republican Robert Bentley and Democrat Don Siegelman, wrote an opinion column on Tuesday detailing their regrets.

As former Alabama governors, we have come over time to see the flaws in our nation’s justice system and to view the state’s death penalty laws in particular as legally and morally troubling. We both presided over executions while in office, but if we had known then what we know now about prosecutorial misconduct, we would have exercised our constitutional authority to commute death sentences to life.

The two men both oversaw eight executions as governor.

Read the whole column here.

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Harlan Crow thinks he is the law

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11 Comments
Ian Mark Sirota
Writes Ian’s Substack
May 23

Well, why WOULDN'T Crow think that he is the law, or at least above it? He's paid zero price for any of his influence-purchasing, and the people who are on his payroll have paid zero price as well.

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Teresa L.
May 24

Billionaires should not exist. Not as human beings, but as a category. There is nothing anyone can do to deserve that much money. Bring back the 90% tax bracket. That would still leave Mr. Crow THREE HUNDRED MILLION dollars -- enough to keep him in statues and tea sets for the rest of his life.

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