Friday, June 23, 2023

The more Justice Samuel Alito tries to explain his failure to recuse and disclose trips with billionaire Paul Singer, the deeper he gets in a hole of his own making

Sam Alito (right), with Paul Singer

U.S. Supreme Court Justice Samuel Alito knew the investigative journalism nonprofit ProPublica was set to publish an unflattering article about his connections to a billionaire businessman who'd had a number of cases before the court, without Alito recusing himself or disclosing conflicts of interest

What action did the esteemed justice take? He dashed off an opinion piece for The Wall Street Journal, in apparent hopes that would stop ProPublica, the first online news source to win a Pulitzer Prize, in its tracks. How did that work out? Not so well, reports a senior editor at Above the Law (ATL). Joe Patrice writes under the headline "Sam Alito Laments It's Getting So You Can't Take All-Expense Paid Luxury Vacations Funded By Billionaires Anymore; Sam Alito tried to get ahead of a ProPublica expose, and it didn't work":

Justice Samuel Alito didn’t want ProPublica to control the narrative on the tale of his dubious conduct like the publication did with its revelations about Clarence Thomas. So when ProPublica asked him for comment on an upcoming story, he decided to get ahead of it, dropping more than a thousand words in The Wall Street Journal defending his lack of recusals and financial disclosures. And by “get ahead of it,” we mean he openly confessed to the most egregious allegation, admitted that his personal conflicts process is so negligent that he likely commits even more ethical breaches, and… maybe confirmed that he was the source of the Dobbs leak.

Stellar damage control. Right up there with O.J.’s “If I Did It.”

It’s also an ill-advised strategy for dealing with ProPublica. The ongoing Clarence Thomas scandals only started with the undisclosed Harlan Crow gifts. The news outlet waited until Thomas chose to shrug these off as falling within the personal-hospitality exception before dumping the receipts about Crow providing free housing for Thomas’s mother and private school tuition for the nephew.

ProPublica did it again. Hours after Alito piqued everyone’s interest, ProPublica released its story complete with on-point responses to Alito’s excuses.

In any event, Alito explains that he barely knows Paul Singer — the billionaire investor at the heart of ProPublica’s inquiry. BARELY!

It sounds  like Alito could use some training in public relations because his handling of the Paul Singer story has been a classic PR dud. Consider this explanation of his relationship with Mr. Singer, the billionaire:

My recollection is that I have spoken to Mr. Singer on no more than a handful of occasions, all of which (with the exception of small talk during a fishing trip 15 years ago) consisted of brief and casual comments at events attended by large groups. On no occasion have we discussed the activities of his businesses, and we have never talked about any case or issue before the Court. On two occasions, he introduced me before I gave a speech—as have dozens of other people. And as I will discuss, he allowed me to occupy what would have otherwise been an unoccupied seat on a private flight to Alaska.

You can almost hear Joe Patrice guffaw as he tries to digest that:

That last sentence is quite the record scratch. Alito concludes that these facts wouldn’t “cause a reasonable and unbiased person to doubt” his impartiality. I worry about my ability to impartially judge strangers who lend me their phone chargers. I’m not in the world where flying me on a luxury jet to a remote Alaskan resort is one of those favors you just blow off. Pretty sure the “reasonable and unbiased person” isn’t in that world either.

The Alito-Singer bromance, as it turns out, is not a new story. It goes back more than a decade, Patrice writes:

ProPublica notes that people were talking about Singer and Alito palling around in Alaska as far back as 2009… WHEN ABOVE THE LAW WROTE ABOUT IT.

Justice Alito was introduced by Paul Singer, the founder of the Elliott Associates hedge fund…. Singer, a personal friend of Justice Alito, gave the typically generous introduction…. Like a good dinner speaker, Justice Alito warmed up the crowd with a story. He talked about going on a fishing trip deep into the wilderness with Paul Singer (maybe to the wilds of Alaska, but the details escape us). One morning they woke up to find their camp surrounded by bears. Justice Alito said he asked himself: “Do you really want to go down in history as the first Supreme Court justice to be devoured by a bear?”

Patrice, again, seems to be struggling to suppress a guffaw:

Yeah, these guys clearly don’t know each other at all! The ProPublica report piles on the details, noting that Singer is the chair of the Manhattan Institute, and Alito gave the keynote address there too. [This is where an earlier version of the article inserted a crack about Alito making martinis out of glacier ice with the guy, but that particular picture is of Scalia making martinis… lest you think the rot is recent.]

See… this is why you don’t lock yourself into a lie first and then let them come with receipts after the fact.

In any event, after admitting the most eye-popping allegation, Alito explains why it was perfectly fine because otherwise no one would’ve sat in that seat:

As for the flight, Mr. Singer and others had already made arrangements to fly to Alaska when I was invited shortly before the event, and I was asked whether I would like to fly there in a seat that, as far as I am aware, would have otherwise been vacant. It was my understanding that this would not impose any extra cost on Mr. Singer.

That sound you hear is Alito's credibility flying out the window. Writes Patrice: 

That’s… how planes work! If, assuming arguendo, that someone intended to bribe you with luxury air travel, a key component would be having an empty seat to give you in the first place. Alito’s logic swallows every private travel junket as long as the party who set up the flight just so happens to be “going my way.” In this case, “my way” is to a remote Alaskan lodge for a fishing trip they went on.

So Alito admits to taking the flight and subsequently not disclosing it. In his defense, he cites the “personal hospitality” exception that Thomas also tried to invoke. Essentially, the justices assumed that they didn’t have to report these gifts — no matter how expensive — as long as they came from a rich person as opposed to a company. Whether they can concoct a reasonable reading that justifies that take isn’t really the point. ProPublica isn’t interested in whether Alito and Thomas had excuses… it’s concerned with the fact that the Supreme Court had a system in place that allowed such unethical activity — de jure or de facto.

Alito's effort to copy Thomas and claim the personal-hospitality exception falls flat:

For what it’s worth, Alito does a slip-shod job trying to make the case that the personal-hospitality exception applied based on some out-of-context Webster’s and Black’s Law Dictionary cites. From ProPublica:

His op-ed pointed to language in the judiciary’s filing instructions and cited definitions from Black’s Law Dictionary and Webster’s. But he did not make reference to the judiciary’s regulations or the law itself, which experts said both clearly required disclosure for gifts of travel. ProPublica found at least six examples of other federal judges disclosing gifts of private jet travel in recent years.

Imagine what a real judge would do to a litigant that traded citations to regulatory and statutory text for Black’s Law Dictionary, notes Patrice:

Aside from disclosure, it turned out Singer had business before the Court and Alito didn’t recuse himself. But he’s got a justification for that too: his ethical screening process is so negligent he doesn’t even realize if he’s obligated to recuse himself!

From Alito:

Second, when I reviewed the cases in question to determine whether I was required to recuse, I was not aware, and had no good reason to be aware, that Mr. Singer had an interest in any party. During my time on the Court, I have voted on approximately 100,000 certiorari petitions. The vast majority receive little personal attention from the justices because even a cursory examination reveals that they do not meet our requirements for review.

 Oh. “Little personal attention.” Alito provides some color to this phrasing:

In the one case in which review was granted, Republic of Argentina v. NML Capital, Ltd., No. 12-842, Mr. Singer’s name did not appear in either the certiorari petition, the brief in opposition, or the merits briefs. Because his name did not appear in these filings, I was unaware of his connection with any of the listed entities, and I had no good reason to be aware of that.

Did I call this process negligent? Because I meant reckless.

That's how Patrice sees it, in blunt terms. And to make matters worse, a justice on the nation's highest court seems to be clueless about the modern world of investing:

If this weren’t so obviously disingenuous, this would demonstrate a disqualifying failure to understand how investing works. Everything is not in these inscrutably titled LLCs. It’s never named “Paul Singer’s Super Awesome LLC.” Which, coincidentally, is a good reason why the “personal hospitality” rule makes no sense because the person behind the shell companies can feel free to covertly grease every wheel, confident that his or her name isn’t on the signature block.

If this is Alito’s conflict check process, he’s announcing that he’s constantly ruling on matters where he has personal conflicts and claiming that it doesn’t matter because he’s not checking.

The problem is we can check. And ProPublica did check. Not that it was particularly hard because you had to be living under a frigging rock not to know that Paul Singer was behind this case, because as ProPublica notes, it received “widespread media attention” — and all those stories explicitly note that the real litigant is… Paul Singer.

That’s the issue because as Alito correctly points out, the standard is “an appearance of impropriety when an unbiased and reasonable person who is aware of all relevant facts would doubt that the Justice could fairly discharge his or her duties.” Just because Alito claims he didn’t bother to perform a reasonable inquiry into the facts doesn’t matter — the public could and when they did, they would’ve found his Alaskan sky chauffeur behind cases Alito jumped all over.

As for the mystery of the leaked Dobbs opinion, which Alito wrote, Patrice has thoughts on that, too:

So Sam Alito is almost assuredly behind leaking the draft Dobbs opinion. There’s still some juice in the Thomas theories, but as the investigation dragged on, Alito started looking more and more like the most famous guest star on an episode of Murder, She Wrote. He had motive and opportunity… which the Supreme Court refused to investigate. He got implicated in past leaks… which the Supreme Court refused to seriously investigate. And he’s the only one publicly yammering that he has a “pretty good idea” who did it, which is such a Murder, She Wrote villain move. He’s denied this all of course.

And then this bumbling op-ed reads like a note left at the murder scene.

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