Washington, DC – Senator Sheldon Whitehouse (D-RI), Chair of the Senate Judiciary Courts Subcommittee, sent a letter today to the Acting Director of the Office of Personnel Management (OPM) following up on requests for records related to dark-money activist Leonard Leo’s role advising the Trump administration on the selection and confirmation of judicial nominees. Over a year ago, Whitehouse led colleagues in requesting documents related to Leo’s work leading and advising the Trump administration on judicial selections and nominations, while simultaneously maintaining a personal financial interest in advocacy efforts related to that work. OPM denied the senators’ request because none of the signatories chaired a Senate committee or subcommittee. Whitehouse assumed leadership in the Senate Judiciary Courts Subcommittee this year.
In the 2020 request, the senators noted Leo’s work driving the unprecedented rise in anonymous funding that pervaded the selection and nomination processes for federal judicial picks under Donald Trump. Importantly, Leo’s advocacy appears to have coincided with his service advising the Trump administration’s judicial selection and nominations process. Between 2014 and 2017 alone, Mr. Leo’s network collected more than $250 million in donations, the sources of which remain unknown and which likely have interests before the federal courts. Recent expert testimony before the Senate Judiciary Courts Subcommittee updates that figure to over $400 million from 2014 through 2018.
Although Leo regularly received upwards of $400,000 in annual compensation from the Federalist Society, he has not disclosed his total compensation received through the entities in his network, including from the BH Group, which contributed $1 million to President Trump’s inaugural committee. The identities of Mr. Leo’s funders are also unknown.
Joining Whitehouse on the letter sent today are Senators Dick Durbin (D-IL), Sherrod Brown (D-OH), Richard Blumenthal (D-CT), and Mazie Hirono (D-HI).
Full text of the letter is below. A PDF copy is available here.
The Honorable Kathleen McGettigan
Acting Director
United States Office of Personnel Management
1900 E St. NW
Washington, DC 20415
Dear Director McGettigan:
In recent years, we have witnessed an unprecedented rise in anonymous funding surrounding the process for selecting federal judicial nominees, confirming them, and advancing cases and legal theories that serve special interests to the detriment of the American people. Investigative reporting has brought attention to Leonard Leo’s orchestrating role in these efforts, including his service with the Trump administration advising its judicial selection and nominations process.[1] Over a year ago, we wrote to the Office of Personnel Management requesting information about Mr. Leo’s role, and OPM responded that it would not provide the information to us. We write now to renew that request in light of the change of Senate control, and because of its continuing importance.
In March 2016, Mr. Leo, who was then Executive Vice President of the Federalist Society, met with Don McGahn and then-candidate Donald Trump to provide a list of possible Supreme Court nominees. After President Trump’s election, Mr. Leo reportedly served on his transition team, and took leave from the Federalist Society to advise the Trump administration on Supreme Court nominations. Reporting also places Mr. Leo at the center of a complex network of nonprofit groups and shell entities funded largely by anonymous donors. Between 2014 and 2017 alone, Mr. Leo’s network collected more than $250 million in donations, the sources of which remain unknown. While much of this money has been directed toward advocacy spending in support of judicial nominees through advertising and other means, it appears that Mr. Leo also has a financial interest in these anonymous donations. Although he has regularly received upwards of $400,000 in annual compensation from the Federalist Society, Mr. Leo has declined to disclose his total compensation received through other entities in his network, including from the BH Group, which contributed $1 million to President Trump’s inaugural committee.
Mr. Leo’s prominent role in the Trump administration’s judicial selection and nominations process while maintaining a financial interest in advocacy efforts related to this process raised questions regarding his potential status as a federal employee and compliance with accompanying laws and regulations. In orchestrating the administration’s efforts to identify and select judicial nominees and press for their confirmation, Mr. Leo appears to have engaged in the performance of a federal function that should be executed by a federal employee.[2]
As a federal employee, Mr. Leo would have been responsible for complying with federal records retention and financial disclosure requirements, as well as the criminal financial conflict of interest statute, 18 U.S.C. § 208. Even if he was not deemed a federal employee, Mr. Leo’s role in the Trump administration may have violated legal limitations on the federal government’s acceptance of voluntary services or restrictions on access to non-public records.[3]
Mr. Leo’s personal financial interest in advocacy efforts related to the judicial selection and nominations process raises serious concerns regarding potential conflicts of interest and the independence of the federal judiciary, given his outsized role in the Trump administration’s work on this issue. On March 4, 2020, we sent a letter to then-Director of the Office of Personnel Management Dale Cabaniss inquiring about Leonard Leo’s role in the Trump administration and requesting the following documents and information pursuant to 5 U.S.C. 552a(b)(9):
1. Mr. Leo’s Financial Disclosures (OGE Form 278 or 450).
2. Any SF-50 for Mr. Leo, and any other documents indicating his employment classification and the legal authority under which he was hired.
3. Payroll records, pay stubs, or any other documentation indicating the dates on which Mr. Leo worked, the amounts he was paid, and any other benefits he received.
4. Documents or agreements related to the administration’s compliance with the Antideficiency Act, 31 U.S.C. § 1341.
5. Recusal statements, waiver, authorizations, or other documents related to Mr. Leo’s compliance with the Ethics in Government Act and associated regulations.
We received a letter in response on May 8, 2020 from Andrew Moore, then-Acting Director of Congressional, Legislative, and Intergovernmental Affairs. Mr. Moore wrote that he was unable to provide the information requested because none of the Senators who signed the letter were the Chair of a Committee or Subcommittee, so the request did not fall within a Privacy Act Exception. We renew our request for the information listed above.
Additionally, we have one further point of inquiry:
1. In the May 8 letter, Mr. Moore informed us that when searching the Enterprise Human Resources Integration (EHRI) system, OPM staff located an employee named Leonard Leo, but whose job series and agency did not match the information included in our letter. What was the job series and agency of the individual found in the EHRI system? Is this individual a different person than the Leonard Leo who was Executive Vice President of the Federalist Society and who advised President Trump on judicial selection?
Thank you for your prompt attention to this matter.
