Justice Thomas' actions have once again raised questions about unethical conduct of judges after he appeared at a $200-a-plate black-tie fundraising dinner for the Federalist Society, a conservative legal advocacy organization funded in part by the Koch brothers.
Canon 4C of the Code of Conduct for U.S. Judges prohibits federal judges from using the prestige of their judicial office to fundraise. Specifically, “a judge may not be a speaker, a guest of honor, or featured on the program” of a fundraising event. The code applies to federal judges but not to Supreme Court justices.
Justices Antonin Scalia and Samuel Alito also attended the event, but neither spoke, nor were they otherwise featured in the evening’s program. Chief Justice John Roberts did not attend.
“By headlining this fundraiser, Judge Sykes is clearly in violation of the Code of Conduct for U.S. Judges and Justice Thomas would be as well—if only the Supreme Court was bound by an ethical code,” Rep. Louise Slaughter (D-NY) said in a statement. “The guidelines contained in the Code exist to ensure the public has faith that judicial decision-making is based on the facts and the law, not politics and outside interests. Congress must act to ensure the Supreme Court plays by the same ethical rules as all other federal judges.”
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Slaughter is the sponsor of a House bill that would require the Supreme Court to adopt its own ethical code, including all the canons in the existing Code of Conduct for U.S. Judges. Chief Justice John Roberts has said the Supreme Court looks to the code for guidance on ethical questions but has so far avoided making it binding on the nation’s highest court.
“Justice Thomas is among several members of the high court who’ve made a habit of flouting judicial ethics by headlining Federalist Society fundraisers,” said Arn Pearson, vice president for policy and litigation at the nonprofit advocacy organization Common Cause. “He gets away with it because the Court has exempted itself from the Code, but that doesn’t make it right. Our nation’s highest court should not have the lowest ethical standards.”
“Here we have the spectacle of two judges helping the Federalist Society raise funds,” added Alliance for Justice President Nan Aron. “Yet while Judge Sykes is violating a binding code of conduct, Justice Thomas is not, because the Supreme Court refuses to be bound by any formal, written code of ethics. Congress needs to change that.”
Rep. Slaughter, along with Common Cause and the Alliance for Justice, has asked Chief Justice John Roberts to address Thomas’ conduct. Thomas’ wife, Virginia Thomas, has deep ties to conservative activists and organizations that often lobby on matters that end up before the Supreme Court. Those ties include organizations linked to billionaire activists the Koch brothers, who have funneled millions into anti-reproductive health and justice causes in addition to groups like the Federalist Society.
Rep. Slaughter and the organizations also filed a formal ethics complaint with the Seventh Circuit Court of Appeals against Judge Sykes.
“We hope these ethics complaints move the courts to take their neutrality seriously and spur Congress to make the Code of Conduct binding on the Supreme Court,” Pearson said. “Judges undermine the integrity of our legal system when they lend their prestige to fundraising efforts, particularly by groups that have an ideological agenda or have proceedings before the courts. It is time to stop the growing politicization of American courts.”
“David Daleiden contacted our agency May 21st of 2015 and filed a criminal report against StemExpress here in Placerville,” a spokesperson at the El Dorado County Sheriff’s Office told Rewire. “All he was, was a reporting party. He didn’t consult with us and he didn’t cooperate with us. In fact, I’d characterize him as uncooperative.”
See more of our coverage on the anti-choice front group the Center for Medical Progress here.
In late May of last year, David Daleiden was reaching the culmination of a project he had been working on for three years. Over that time, the anti-choice activist had been living a lie of his own creation. He had set up a bogus company, complete with a fake website, and corporate officers whose names were in fact aliases.
He had enlisted half a dozen other anti-choice activists to help him, most notably Sandra Susan Merritt, a 63-year-old resident of San Jose, California, who—using the alias Susan Tennenbaum—posed as the CEO of the bogus company, Biomax Procurement Services.
Together, Daleiden—going by Robert Daoud Sarkis—and Merritt hopscotched the country, traveling from California to Colorado, Florida, Maryland, Texas, and Washington, D.C. They attended conferences for abortion providers and parlayed those attendances—and the trust and credibility they engendered—into visits to abortion clinics, where the pair secretly recorded meetings and site visits and tried to goad their targets into making statements that could be twisted to look like evidence of illegal activities.
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By May 21, Daleiden was nearly ready to bring his elaborate scheme to a head. The next night, he and “Tennenbaum” were scheduled to have dinner with executives from StemExpress, a tissue procurement company based in Northern California. As he had done for virtually every encounter as a Biomax official, Daleiden planned to secretly video record the meeting and then to release doctored versions of that footage to the public.
But this time, Daleiden did something different. On the eve of this particular meeting, he delivered a bundle of so-called evidence of alleged wrongdoing by StemExpress to the El Dorado County Sheriff’s Office, claiming that the company had engaged in a range of crimes including trafficking in human organs and human tissues, and “homicide of babies born alive during the abortion procedure,” according to legal documents obtained by Rewire.
In a deposition taken late last year, Daleiden would claim—in sworn testimony, under penalty of perjury—that the purpose of his meeting with the El Dorado County Sheriff’s Office was “to coordinate [his] investigations going forward on how to bring StemExpress criminal conduct to light.”
Following his lawyer’s advice during that deposition, Daleiden refused to say more about that meeting, or the other authorities he had supposedly “coordinated” with in his spying campaign, but he did heavily imply that the El Dorado County Sheriff’s Office was just one of the “governmental authorities” that he met with “contemporaneously with the actual undercover operation.”
The notion that law enforcement authorities were actively colluding with Daleiden and his associates in conduct that has resulted in criminal indictments is curious, to say the least.
It’s just one of the loose ends that surrounds Daleiden’s project, a year after he released the first smear video against Planned Parenthood (the organization and some of its individual employees), abortion providers in general, and companies that assist in the procurement of tissue for medical and scientific research.
Despite the dozen-odd state and federal investigations his project sparked, the multiple civil and criminal cases it sent ricocheting through state and federal courts, and the untold damage it caused to companies, organizations, and individuals targeted by his group, many questions remain about who funded Daleiden, which politicians supported him, and who else was involved in his operation—including the identities of the other operatives that posed as Biomax employees.
Using freshly obtained legal documents, Rewire has taken a look back at some of the most mysterious aspects of the Daleiden affair, comparing what we have learned since the videos were first released with what remains unknown or unclear.
What emerge are some disturbing claims that have yet to be fully resolved, not least of which is the extent to which members of Congress were aware of—or involved in—planning or executing Daleiden’s campaign.
El Dorado Sheriff’s Office: Daleiden Was “Uncooperative”
When Daleiden met with the El Dorado County Sheriff’s Office, he handed over a report he had prepared containing his “best kind of summary or list of the different California and federal laws that are implicated in the actions between StemExpress and Planned Parenthood,” along with “a few representative examples of the evidence that CMP gathered that indicates probable cause for violations of those laws,” according to a transcript of the deposition he gave on December 30, 2015.
When Rewire contacted the El Dorado County Sheriff’s Office about this anecdote, its spokesperson, Jim Byers, said he clearly remembered Daleiden’s visit, but disputed Daleiden’s characterization that his office was “coordinating” with the spying project.
“David Daleiden contacted our agency May 21st of 2015 and filed a criminal report against StemExpress here in Placerville,” Byers said. “All he was, was a reporting party. He didn’t consult with us and he didn’t cooperate with us. In fact, I’d characterize him as uncooperative.”
Byers said that it was unclear to his colleagues what exactly Daleiden wanted them to do with the information he had provided. Flipping through the report while speaking with Rewire, Byers explained: “It just says that he had been conducting a multiyear investigation and was going to go public with it and wanted to make this report to us, but when we asked him to hold off so we could investigate his claims, he went ahead and went public anyway.”
The reason the sheriff’s office asked Daleiden not to go public was because doing so would hamper any investigation they might do into the allegations Daleiden had made. “That’s very common, for us to ask something like that, because then the people we need to talk to aren’t going to talk to us,” Byers said. “He declined to follow our request.”
Regardless, the sheriff’s office spent months investigating Daleiden’s claims; they found no evidence of illegal conduct by StemExpress. As is routine, the sheriff’s office then referred the matter to the El Dorado District Attorney for further review. Dave Stevenson, the spokesperson for the district attorney’s office, told Rewire he was unable to comment on the matter as the investigation is ongoing.
If it seems odd that Daleiden would make a report to law enforcement—but not give them any time to actually investigate the allegations he’d made and actually jeopardize those investigations—that might be because the act of making the report itself was part of Daleiden’s legal strategy.
Daleiden was consulting with the Life Legal Defense Foundation for at least two years prior to releasing his videos, according to published reports. It’s therefore likely that he knew that California creates criminal and civil penalties for people who intentionally make a secret recording of a person in a private meeting without their consent. And indeed, that’s one of the key charges within the lawsuits that have been filed against Daleiden and his co-defendants.
It’s also likely that Daleiden and his advisers knew that there is an exception to that law for people who make a secret recording “for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person.”
Throughout the deposition he made on December 30, Daleiden maintained that he believed he was exposing criminal conduct as a justification for his spying activities. Merritt made similar claims in the deposition she gave in the same case, on December 29. In particular, both insist they believed they were recording evidence of murder.
It appears plausible that Daleiden made his report not because he thought the county sheriff’s office would really investigate, but because he anticipated that once he published the illegally taped videos, he would be charged with a crime, and he was simply laying the groundwork to be able to show a court later on that he had filed the criminal report as evidence of his belief that he had uncovered a crime.
Daleiden did not reply to Rewire‘s questions about whether this was in fact his legal strategy. Catherine Short, his lawyer at Life Legal Defense Foundation, did not immediately respond to our emails seeking comment.
However, for that defense to work, a person must show they had an honest and reasonable belief that they were uncovering a crime. And when it came to the specifics of the supposed crimes they were uncovering, both depositions are striking for the extent to which Daleiden and Merritt refused or were unable to give clear definitions of those offenses.
For instance, both Daleiden and Merritt were reluctant to answer questions about who, if anyone, they believed had actually committed the murder they were supposedly reporting, despite that being one of their key allegations. Both Daleiden and Merritt made vague statements about “doctors” being responsible, or about the “abortion industry” writ large, but when it came to the specifics of how anyone at StemExpress could have been guilty of murder, their answers were evasive.
In one chilling passage, Daleiden gave stammering and elusive answers to questioning over whether he believed that one of the people who assisted him in his smear campaign—a former StemExpress employee named Holly O’Donnell—had provided him with evidence that she had herself committed murder. Discussing O’Donnell’s account of one incident she related where she claimed to have procured fetal brain tissue, Daleiden initially said he did not believe O’Donnell had murdered that fetus. But under questioning about the overall processes involved in preparing tissue samples, Daleiden’s answers became confused.
After Daleiden noted that O’Donnell went with him to his first meeting with El Dorado law enforcement, the StemExpress lawyer asked: “Did you ever tell Holly that you thought she should be investigated by El Dorado County for her conduct?”
Daleiden never definitely said “no,” but rather, “I think that, you know, the testimony of people who worked at StemExpress is—you know, is relevant to that investigation but I think the ultimate culpability is with the—with the business entity.” He also said he would “put culpability on the doc,” but then he said:
I’m not sure what Holly’s obligations were there. But, you know, but this is—this is highly speculative and, like I said, this is why I think this is really serious information that I—and really serious allegations and actions that—that needed to be brought to law enforcement, which is what I did.
Ultimately, Daleiden’s lawyer summarized his client’s position on O’Donnell’s potential guilt thus: “He explained as best he could that it would be the doctor or it would be [a different StemExpress employee] and it’s ambiguous as to Holly’s role at that point.”
Merritt appears to go further. Towards the end of her deposition, she was asked to clarify whether she believed that any StemExpress employees had committed murder. She described what she believed O’Donnell had done, and then said, “Yes, I believe that to be murder.”
One can only wonder whether O’Donnell was aware that Daleiden considered the possibility—or perhaps, had not considered the possibility—that he was giving law enforcement authorities evidence that she had committed murder, when she accompanied Daleiden to their offices and helped him with his “investigation.”
Rewire’s attempts to contact O’Donnell for her comment on that question were unsuccessful.
Further Evidence That Daleiden and His Associates Are Not Reporters
The very fact that Daleiden claimed—albeit incorrectly—to have been “coordinating” with law enforcement further undermines his dubious assertion that he is an investigative reporter. Reporters would seldom coordinate their efforts with law enforcement, except for rare instances where, by way of example, they might inform law enforcement if they had learned of an imminent risk to a person’s life or to national security.
The deposition also revealed Daleiden’s investigative methods to be far from objective, and in some respects, amateurish.
Under questioning from StemExpress’ attorney, Daleiden explained that much of his knowledge of how tissue or organ transplantation worked was based on “research,” which comprised Googling for journal articles, which he admitted to cherry-picking. He also based most of his understanding of the equipment used in heart transplants on watching videos that the equipment manufacturer had posted on its website and YouTube channel.
He relied disproportionately on the expertise of a scientist whose otherwise impressive credentials are marred by her support for widely debunked theories that vaccines are linked to autism. He used this patchwork knowledge to cobble together flawed theories about how fetal tissue is acquired, and the circumstances in which it could be used for research.
He even made assumptions about what medical professionals meant by the words “case” or “specimen”—he said he believed the people he filmed were referring to a fetus, when in fact those words can also refer to a particular organ or piece of tissue. He said that he didn’t give the subjects of his secret video recordings the opportunity to clarify what they meant by these terms because he didn’t want to blow his cover—or as he put it, he didn’t want to get greedy for information and “get lost in the Cave of Wonders like Aladdin and go like looking for all the other treasures.” He just ran with his own assumptions, something no professional reporter would do.
And he acknowledged that the reason he embarked on his project was because he had formed an unshakable belief that abortion providers engaged in unlawful trafficking of human organs and tissues, instead of remaining open-minded about the facts and attempting to report against his own biases, as a real reporter would do. None of the multiple investigations into Planned Parenthood have found any evidence that substantiate Daleiden’s allegations. Indeed, Daleiden manipulated his videos to omit passages where the targets of his campaign explicitly told him that profiting from human tissues was unethical and illegal.
Merritt’s deposition is even more astonishing in terms of just how flimsy her claims to be a reporter turn out to be.
Like Daleiden, Merritt is trying to assert that she is a reporter and therefore protected by the First Amendment.
A lawyer for StemExpress asked Merritt, “Do you consider yourself a journalist?”
Merritt answered, “Yes.”
The lawyer then asked, “Have you ever published any articles?”
Merritt answered, “I have not.”
She said she didn’t do any original research. She didn’t do any writing. She didn’t edit. Merritt specifically told the lawyer for StemExpress that her sole role in the ruse orchestrated by Daleiden was to wear a video recorder while playing the part of Susan Tennenbaum, which may explain why Daleiden has frequently referred to his associates as “actors.”
Wearing a camera does not a reporter make.
Which Members of Congress Knew About the Planned Smear Campaign, What Did They Know, and When?
An especially curious aspect of this saga is how some members of Congress had seen at least one of the smear videos before Daleiden released them to the public. Rep. Trent Franks (R-AZ) and Rep. Tim Murphy (R-PA) both told Roll Call that they had seen the first video about a month before it was published. How and why they came to see the video, and what their role was in helping plan the political response to the tapes, if any, remains unclear.
But the following exchange during Daleiden’s deposition provided a tantalizing tidbit about that mystery.
In his December 30 deposition, Daleiden declined to answer the following questions from StemExpress’ lawyer:
When is the first time you spoke with anybody from, or had any contact with anybody from Congress?
When is the first time you provided any materials to anybody that is a member of Congress?
Daleiden responded: “I don’t think the answer to that question is a matter of public record so I’m going to follow the advice of my counsel.” He declined to respond.
Ostensibly, the reason Daleiden declined is that he believed it was outside the scope of that particular deposition, which was confined to some narrow legal arguments. However, there is an implication in the December 30 deposition that those questions were within the scope of a related case, along with questions about who funded Daleiden’s efforts, and information about the specific role of his board member, the anti-choice extremist and head of Operation Rescue, Troy Newman.
A year has passed since the videos were first released, and a lot of time and taxpayer dollars have been spent as a result of Daleiden’s endeavors. But a year is a short time in the life of a lawsuit, and many cases are still wending their way through state and federal courts. As they do, it is possible that we will learn more about these unresolved questions.
Time will tell whether the pattern Daleiden has established will continue: Instead of exposing wrongdoing by others, the only wrongdoing he has thus far managed to record and expose was his own.
The National Immigration Law Center, the American Civil Liberties Union (ACLU), and the ACLU of Texas filed on Friday a petition for writ of mandamus before the Fifth Circuit Court of Appeals on behalf of four people affected by a court order requiring the Department of Justice (DOJ) to turn over the personal information of thousands of young, undocumented immigrants by June 10.
Marielena Hincapié, executive director of the National Immigration Law Center, expressed concern in a press release that this information would be “used against them” because the court order would place the personal information of thousands of undocumented young people directly in the hands of the state officials who oppose protections for undocumented immigrants.
U.S. District Judge Andrew Hanen, who issued the court order, led the charge on obstructing the implementation of DAPA (Deferred Action for Parents of Americans) and the expansion of Deferred Action for Childhood Arrivals (DACA), announced in 2014. In February of 2015, Hanen issued a temporary injunction to the 26 states challenging President Obama’s executive action on immigration in 2014, and in a later ruling denied the DOJ’s request for a stay of the preliminary injunction. Later, the DOJ petitioned the Supreme Court to take up the case after the U.S. Court of Appeals for the Fifth Circuit agreed with Hanen’s ruling. An opinion in that case, United States v. Texas, is expected this month.
Like DACA—which enables undocumented immigrants who entered the country before their 16th birthday and before June 2007 and who meet other requirements, to receive a renewable work permit and exemption from deportation for two years—DAPA offers similar benefits to undocumented parents with U.S. citizen or legal permanent resident children. However, neither DACA nor DAPA offers a pathway to citizenship.
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The four DACA recipients who are the subject of the petition were able to remain in the country for two years when DACA was implemented in 2012. When their permissions were set to run out in the fall of 2014, they sought extensions at the same time the Obama administration announced its DACA expansion, which lengthened work authorization permits from two to three years. While DACA in its original form, as announced in 2012, is still in place, it is this expansion that is being contested in the Supreme Court case.
The four DACA recipients in the petition reapplied and received three-year extensions. They are just four of the estimated 108,000 young, undocumented immigrants who benefited nationwide from the DACA expansion between November 2014 and February 2015, before Hanen issued a preliminary injunction on both DAPA and the DACA expansion, ordering the government to rescind the three-year permits.
On May 19, Hanen ordered the Justice Department to disclose the names, addresses, and other identifiers of the estimated 50,000 DACA recipients residing in the 26 states involved in United States v. Texas and who benefited from the short-lived DACA expansion. The SCOTUSblog reports that the judge handed down this order last month “to punish the government for what [Hanen] found to be intentional ethical misconduct in his court by two Justice Department lawyers when the immigration case was before him earlier,” though the lawyers contend “the ethics dispute arose mainly from misunderstandings between the judge and the lawyers about just what was at stake, and not from a ploy by government lawyers to mislead the court.”
The judge said the list would remain sealed until the Supreme Court issues a decision, but afterwards states could request information on the list be given to authorities if they could prove the information “would minimize or prevent harm in that state.”
The writ of mandamus petition filed by the three civil rights organizations enables the DACA recipients affected by the order to request for a stay of the order. And as SCOTUSblog reported, “Since that data is supposed to be filed by next Friday, the four individuals asked that the Circuit Court decide on their challenges by Wednesday so that they ‘may seek further review if necessary’—apparently, an indication that they would go on to the Supreme Court if the Circuit Court were to turn them down.”
This action is about protecting the basic constitutional privacy rights of those who received three-year work authorization permits, according to the ACLU of Texas.
“The rights embodied in our Constitution were designed to protect the most vulnerable members of our society, including young immigrants who only know this country as their own,” Edgar Saldivar, senior staff attorney for the ACLU of Texas, said in a press release. “If their fundamental privacy protections can be nullified by the stroke of a judge’s pen in a case to which they are not parties, then everyone’s privacy rights are threatened.”