Senate Republicans claim that the subpoena of Leonard Leo by Democrats is deemed unlawful

Senate Republicans are pouring cold water on the legality of a Democratic-led subpoena this week to Leonard Leo, a conservative activist who helped advise former President Donald Trump on Supreme Court picks.

Leo said on Thursday he would not comply with the “unlawful and politically motivated subpoena” he received that day from Senate Judiciary Committee Chairman Dick Durbin (D-IL) as part of the Democratic majority’s investigation into reported trips or gifts to Republican-appointed Supreme Court justices from wealthy activists they argue went undisclosed. To Republicans, the effort to obtain private records from Leo is invalid, particularly because GOP lawmakers were not present for the roll call vote in November of last year — despite a committee rule requiring two minority members for a quorum.

The vote in November 2023 also occurred after 12:00 p.m., after the two hours senators were allowed to meet, in violation of Senate rules, Republicans said.

“The world is on fire, the border is broken, and the Biden administration is completely incompetent on multiple levels,” Sen. Lindsey Graham (R-SC), GOP ranking member on the Senate Judiciary Committee, told the Washington Examiner. “Yet the Democrat-led Senate wants to subpoena a private citizen for political clickbait.”

“The subpoena is illegal, the underlying allegations are frivolous, and I hope the American people are fed up with this,” Graham said. “I know I am.”

Durbin said on Thursday that Leo played a “central role in the ethics crisis plaguing the Supreme Court and, unlike the other recipients of information requests in this matter, he has done nothing but stonewall the committee.” Leo is co-chairman of the Federalist Society, a major conservative and libertarian legal group.

The subpoena to Leo comes less than two months after ProPublica published an article titled “Why haven’t Harlan Crow and Leonard Leo Been Subpoenaed?” The website has reported on the relationships between Leo and other activists, such as Harlan Crow, and Supreme Court Justices Samuel Alito and Clarence Thomas. ProPublica is funded by many of the same left-wing organizations that have either called on Thomas to resign or pressed for investigations into alleged ethics violations among both justices.

“The Durbin subpoena is illegitimate and unenforceable,” Sen. Mike Lee (R-UT) told the Washington Examiner. “It is a document produced solely by Democrat members of the Judiciary Committee in violation of our own rules, a desperate attempt to quash the First Amendment rights of private American citizens through government harassment.”

That the investigation could violate Leo’s First Amendment rights is an argument the activist’s lawyer, David B. Rivkin, laid out in a letter last year to Durbin. The lawyer said Democrats on the committee were “targeting Mr. Leo out of hostility toward his political views and associations” and had “intensified their rhetorical attacks on Mr. Leo’s conservative views and constitutionally protected speech.”

“These subpoenas are unlawful, and the threat they represent is unethical,” Sen. John Kennedy (R-LA) told the Washington Examiner. “Democrats are trying to punish and defame the Supreme Court because they can’t control it.”

Sen. Ted Cruz (R-TX) said the subpoena shows that “Democrats will stop at nothing to delegitimize the Supreme Court.”

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“See these Democrat attacks for what they are — a full-on assault on our Constitution,” he said in a statement. “Democrats hate our system of separation of powers, and they are willing to burn down the Supreme Court to accomplish their goals.”

To enforce the subpoena, Democrats would need to hold a Senate vote and earn 60 votes in the split upper chamber, a difficult task.

Kaelen Deese contributed to this report.