Leonard Leo remains steadfast after Durbin issues subpoena

EXCLUSIVE — Federalist Society co-Chairman Leonard Leo said Thursday he is “not capitulating” after he announced Sen. Dick Durbin (D-IL) filed a subpoena against him.

“Today, I received an unlawful and politically motivated subpoena from U.S. Senate Judiciary Committee Chairman Dick Durbin,” Leo said in a statement obtained by the Washington Examiner. Last November, the Democratic-led committee held a vote to authorize subpoenas for GOP megadonor Harlan Crow and the Federalist Society co-chairman, the latter of which has long been criticized by liberal activists for his role in influencing the federal judiciary.

Durbin accused Leo of playing 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,” calling the subpoena a result of Leo’s “own actions and choices,” according to a statement shared with the Washington Examiner.

The Democratic-led committee has been looking to gain access to documents from Crow and Leo to aid its investigation into allegations of unethical financial gifts and potential conflicts of interest posed by personal ties between Supreme Court justices and billionaire donors and activists.

Durbin also accused Leo of making multiple “blanket” refusals to cooperate with “legitimate oversight requests” since July 2023.

“His outright defiance left the Committee with no other choice but to move forward with compulsory process. For that reason, I have issued a subpoena to Mr. Leo,” Durbin added in his statement.

David Rivkin, an attorney for Leo, wrote in an eight-page letter dated Oct. 19 that they previously put forward “clear and detailed reasons” as to why the committee’s inquiry constituted a form of “political retaliation in violation of the First Amendment and Equal Protection component of the Due Process Clause.”

“For the reason previously set forth, Mr. Leo is not complying with the Democrat Senate Judiciary Committee members’ unlawful and politically motivated subpoena,” Rivkin wrote to Durbin in a letter on Thursday.

Leo said Thursday he will not capitulate to Durbin and his “lawless support of Senator Sheldon Whitehouse and the left’s dark money effort to silence and cancel political opposition.”

After Leo made his vow to defy the subpoena, aides from both the Republican minority and Democratic-led majority on the committee voiced contradicting opinions on whether the subpoena is even authorized and enforceable.

In November, the Democratic-led committee canceled at least two planned votes to subpoena both Crow and Leo in the face of intense Republican opposition to the majority’s efforts.

The committee canceled one vote the week of Nov. 16, the same week the Supreme Court adopted an ethics code for the first time following months of intense scrutiny after the nonprofit outlet ProPublica reported on Justice Clarence Thomas’s lavish vacations financed by Crow.

But on Nov. 30, the subpoenas for Crow and Leo were voted on by 11 Democratic senators, while no Republican senators on the committee voted. GOP members walked out of the committee room during the vote after it became clear Durbin would not allow votes on any GOP amendments.

An aide for Durbin told the Washington Examiner that while the senator “certainly expects the subject to acknowledge the gravity of a congressional subpoena,” there are “options available to the Senate to enforce a subpoena in the event of noncompliance.”

However, a spokeswoman for the Republican minority on the committee, Taylor Reidy, argued that Durbin failed to authorize the subpoena back in November because Democrats voted while no Republican members were present.

“Senate Judiciary Democrats tried and were unsuccessful to authorize a subpoena back in November. The document issued today is invalid,” Reidy said.

Following the reports on Thomas that began in April 2023, subsequent reporting from ProPublica came out regarding Justice Samuel Alito, revealing that Alito was offered a flight on billionaire Paul Singer’s plane for a fishing trip to Alaska in 2008. A separate report from the Associated Press last year revealed Justice Sonia Sotomayor’s staff had prodded colleges and libraries to purchase her books.

Despite outrage by Democrats over the personal activities of Republican-appointed justices Thomas and Alito, none of the alleged conflicts of interest against the high court members appear to have influenced their written opinions.

Notably, the subpoena against Leo comes less than two months after ProPublica published a report titled: “Why haven’t Harlan Crow and Leonard Leo Been Subpoenaed?” The nonprofit outlet, which has a history of being funded by donors with left-of-center politics, has been responsible for much of Democrats’ outrage over purported conflicts of interest at the high court.

The committee’s subpoena also comes less than a week after Washington, D.C., Attorney General Brian Schwalb quietly closed an investigation into Arabella Advisors, the $1 billion left-wing dark money network sharing connections to his office, according to a lawyer for Arabella’s funds.

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However, Schwalb’s office still appears to be investigating groups linked to Leo, an influential conservative activist who helped advise former President Donald Trump on his judicial nominees, including his three appointees to the high court. The attorney general’s office previously said it declines to confirm or deny the existence of investigations.

Gabe Kaminsky contributed to this report.