Opinion | Congress decides what it can investigate, not Harlan Crow

Crow attorney Michael D. Bopp sent a highhanded letter to the Senate Judiciary Committee Monday that could be condensed to two words: go away.

The committee, led by Sen. Richard J. Durbin (D-Ill.), had written Crow on May 9 asking for the information as part of the committee’s “ongoing efforts to craft legislation strengthening the ethical rules and standards that apply to the Justices of the Supreme Court.” It sought a list of gifts, travel and lodging Crow or his entities had provided to any justices, plus any real estate transactions. In other words: What else is out there?

“After careful consideration, we do not believe the Committee has the authority to investigate Mr. Crow’s personal friendship with Justice Clarence Thomas,” Bopp responded. “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.”

Bopp’s letter is unlikely to be the last word. There’s a regular give and take between members of Congress and the subjects of their inquiries. That’s fine. Being told to bug off is another matter. Being told to bug off because the subject of the inquiry has determined for himself what the Constitution has to say about the matter takes things to a new level.

The obvious response here is a subpoena, but that step will be complicated, among other things because of Democrats’ precarious majority, committee rules that empower Republicans to block action from their minority perch and the prospect of time-consuming efforts to ensure compliance.

All of which makes a summons a rickety bridge to cross. But first, let’s back up and consider why Crow’s argument is so wrong.

Bopp contends that the panel can’t have a “valid legislative purpose” because it can’t legislate ethics rules for the high court. His letter gives no reasonable-people-can-differ ground on this contested topic — it simply asserts the impermissibility of legislating in this area. Former federal judge J. Michael Luttig, an esteemed conservative, told the Judiciary Committee this month that Congress “indisputably has the power” to set ethics rules for the high court. Others disagree.

Ultimately, the constitutionality of any such move would be decided by the justices themselves. Unless and until that happens, the scope of congressional authority remains an open question — one not up to Crow to decide for himself. And it’s more than a bit odd for a private citizen to be arguing that a congressional request to him, for his own information, somehow violates the separation of powers.

Even more to the point, Congress already regulates the justices’ ethical conduct. One federal law requires all federal judges, including justices, to recuse themselves from deciding cases in which their impartiality might reasonably be questioned. Another, passed just last year, requires judges and justices to follow the same rules as other federal officials in reporting stock transactions.

And the post-Watergate Ethics in Government Act imposes financial disclosure requirements on a broad array of senior government officials, including the judiciary and explicitly including the justices themselves, and limits what gifts and outside income they can accept. As Chief Justice John G. Roberts Jr. noted in his 2011 year-end report on the judiciary, “The Court has never addressed whether Congress may impose those requirements on the Supreme Court. The Justices nevertheless comply with those provisions.”

And that, until the courts say otherwise, gives the Senate a valid legislative purpose in questioning Crow: to learn if the laws on the books need strengthening: Do the financial disclosure requirements set out in the law need to be tweaked or strengthened? (Yes!) Are the review and enforcement procedures working adequately? (No!)

The Crow/Bopp letter argued instead that the committee doesn’t need the details it asked for. “If Congress in fact can constitutionally draft legislation prescribing ethics standards for the Supreme Court, whatever information the Committee may need to craft an ethics code is readily available from other sources, including information already reported regarding Justice Thomas’s relationship with Mr. Crow,” Bopp wrote.

But it is Congress that gets to decide how much detail it needs, not Crow. Just because the fine reporters at ProPublica discovered some Crow-funded private flights, tuition payments and real estate purchases, that doesn’t mean they found everything. The scope of Crow’s largesse is surely relevant to the committee’s inquiry; it need not rely on outside reporting.

Instead, Bopp went ad hominem, “It is clear that the Committee’s investigation is part of a larger campaign to target and intimidate Justice Thomas and unearth what the Committee apparently believes will be embarrassing details of the Justice’s personal life,” he wrote. “Those goals do not authorize the Committee to conduct a congressional ethics investigation of Justice Thomas.”

This isn’t an ethics investigation. It’s a legitimate exercise of congressional oversight, spurred by multiple troubling reports about a justice’s behavior. The committee wouldn’t be doing its job if it weren’t pressing for this information — and it can’t let this matter drop.