Washington, DC – Senate Democrats Sheldon Whitehouse (D-RI), Dick Durbin (D-IL), Sherrod Brown (D-OH), Richard Blumenthal (D-CT), and Mazie Hirono (D-HI) today sent a series of letters to Leonard Leo, U.S. Attorney General William Barr, Office of Personnel Management (OPM) Director Dale Cabaniss, White House Counsel Pat Cipollone, and Federalist Society President and CEO Eugene Meyer raising concerns with potential conflicts of interest related to Mr. 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.
In the series of letters, the senators note that Leo has helped drive the unprecedented rise in anonymous funding that now pervades the selection and nomination processes for federal judicial picks. Importantly, Leo’s advocacy work 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. 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.
The Senators emphasize that Leo’s leading role in the Trump administration’s judicial selection and nominations process raises questions about whether he performed a federal function that must have been conducted by a government employee authorized to act on behalf of the United States. The Senators request records to help determine Leo’s potential status as a federal employee and compliance with accompanying laws and regulations, including records retention and financial disclosure requirements, as well as the criminal financial conflict of interest statute.
Text of the senators’ letter to the Attorney General Barr is below. PDF copies of the letters can be found here:
- Leonard Leo
- Attorney General Barr
- OPM Director Cabaniss
- White House Counsel Pat Cipollone
- Federalist Society President and CEO Meyer
Attorney General William Barr
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Barr,
As members of the United States Senate, we have witnessed an unprecedented rise in anonymous funding which now pervades 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. We believe this anonymous funding, likely from entities that have interests before the federal courts, is undermining the rule of law and the bedrock American principle of equal justice under law.
Investigative reporting has brought attention to Leonard Leo’s leading role in these efforts, including his service with the Trump Administration advising its judicial selection and nominations process.[1] 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 also served on his transition team, took leave from the Federalist Society to advise the Trump Administration on Supreme Court nominations, and continues to serve as an advisor on nominations to federal district and appeals courts. To date, over 85 percent of President Trump’s appellate court nominees, including both of his nominees to the Supreme Court, are current or former members of the Federalist Society.
This 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. In addition, he has recently indicated that he is forming a new venture which plans, among other things, to raise and spend millions on issue advocacy campaigns focusing on judges in the 2020 election cycle.
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 has raised questions regarding his potential status as a federal employee and compliance with accompanying laws and regulations. By outward appearances, Mr. Leo appears to have engaged in the performance of a federal function that must be conducted by government employees authorized to act on behalf of the United States by leading the Administration’s efforts to identify and select judicial nominee, and press for their confirmation.
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. 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.
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 leadership role in the Trump Administration’s work on this issue. As Congress conducts oversight and considers legislation related to conflicts of interest, we request that you provide the information requested in the attached Appendix. Because of the Department’s role in the judicial selection or nomination process for federal judicial nominees, Mr. Leo’s potential interactions with the Department as part of that process are relevant to our inquiry.
Please provide the documents specified in the attached Appendix by no later than April 10. Please also consider this letter formal notification of your obligation to identify, collect, and preserve any records that are responsive to requests in that Appendix.
Thank you for your prompt attention to this matter.
Appendix
From the period beginning January 20, 2017, to the present, please provide all records in the custody of the United States Department of Justice (including emails, email attachments, notes, hard copy correspondence sent through any medium including courier service, telephone call logs, calendar invitations/entries, meeting notices, meeting agendas, talking points, any handwritten or electronic notes taken during any responsive communications, and summaries of any responsive communications) related to Mr. Leo’s involvement in any potential, actual, or suggested judicial selection or nomination.
For the purposes of this request, the Department may limit its search to custodians within the Office of the Attorney General, the Office of the Deputy Attorney General, the Office of the Associate Attorney General, the Office of Legal Policy, and the Office of Legislative Affairs.
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[1] Robert O’Harrow & Shawn Boburg, A Conservative Activist’s Behind-the-Scenes Campaign to Remake the Nation’s Courts, The Washington Post (May 21, 2019).
