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The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

Democrats weigh trying to force Supreme Court to adopt ethics rules

The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

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In today’s edition … Trump to be arraigned Tuesday as another investigation heats up … What we’re watching: Election Day on Tuesday in Chicago & Wisconsin … On foreign policy, Biden’s gut is his guide … Biden’s week ahead … but first …

On the Hill

Democrats weigh trying to force Supreme Court to adopt ethics rules

A key Democratic senator plans to use Congress’s power of the purse to pressure the Supreme Court to adopt a code of conduct as the justices come under increasing scrutiny for not having clear ethics rules in place.

Sen. Chris Van Hollen (D-Md.), chairman of the Senate Appropriations subcommittee that oversees the court’s budget, told The Early that he will use his spending bill this year to try to force the justices to adhere to an enforceable ethics code — similar to the one that applies to federal judges.

  • “The Supreme Court should have a code of ethics to govern the conduct of its members, and its refusal to adopt such standards has contributed to eroding public confidence in the highest court in the land,” Van Hollen said in a statement to The Early. “It is unacceptable that the Supreme Court has exempted itself from the accountability that applies to all other members of our federal courts, and I believe Congress should act to remedy this problem.”

The court did not respond to requests for comment.

How would it work?

Van Hollen’s proposal would likely involve leveraging part of the Supreme Court’s nearly $200 million budget request for the 2024 fiscal year, which begins Oct. 1.

Van Hollen’s office did not provide specifics.

  • But in the past when appropriators wanted to pressure a federal agency to do something — change a policy, produce a report or take some other action — they included language in bills to mandate that some part of an agency’s funding could not be used until the agency did what lawmakers wanted. This approach can be a powerful tool for the spending panels.

Most of the court’s budget request covers general operations, such as salaries and building maintenance. This year, the justices have requested an additional $5.9 million to expand security and protective services, given recent threats made against them.

The Senate Appropriations Committee is likely to start considering its fiscal 2024 bills in the next few months.

The hunt for ethics standards

Lawmakers, associations and advocacy groups have for years urged the Supreme Court to adopt ethics guidelines for the justices — to no avail.

These critics have focused on issues such as whether justices should recuse themselves from cases because of relationships with the parties involved and whether the activities of their spouses or other relatives create conflicts of interest. 

Much of the recent attention to the court’s lack of an ethics code has focused on Virginia “Ginni” Thomas, a conservative activist who is married to Justice Clarence Thomas, and her behind-the-scenes advocacy for overturning the 2020 presidential election.

The court considered adopting an ethics code in recent years but could not reach a consensus, our colleagues Robert Barnes and Ann E. Marimow scooped in February.

  • The justices debated the matter for at least four years but opted to voluntarily comply with the ethics standards that govern federal judges. 
  • But Chief Justice John G. Roberts Jr. and other justices have argued that “they cannot be bound by all of the rules that apply to lower court judges because of the unique role the Constitution assigns the Supreme Court as the ultimate decision-maker in the nation’s judiciary,” Robert and Ann write.
New disclosure rules

As of last month, the Supreme Court justices are bound by a new set of disclosure rules that close the loophole on “personal hospitality exemptions,” in what Sen. Sheldon Whitehouse (D-R.I.), chairman of the Senate Judiciary subcommittee that oversees the federal courts, called a “little, but real, victory.”

  • The revised standards, adopted by the Judicial Conference on March 14, compel the nine justices as well as federal judges to disclose the gifts they receive, including meals and trips paid for by corporations or third parties, per our colleagues Jonathan O’Connell and Ann.

Whitehouse told The Early in an interview that he hopes Van Hollen goes through with his plan. What is needed now, he said, is an enforceable ethics code and a system for investigating and evaluating alleged violations.

“They are the only organization in the entire United States government that has no mechanism for investigating alleged ethics violations,” Whitehouse said. “It’s crazy.”

The temperature on the Hill

Van Hollen hopes to secure bipartisan support for the proposal.

“I don’t see any reason why ensuring that the Supreme Court establish a code of ethics should be a partisan issue,” he said.

But the senator from Maryland already has one obstacle to overcome.

  • Sen. Susan Collins (Maine), the top Republican on the Senate Appropriations Committee, questioned Van Hollen’s authority to use the power of the purse to sway justices. “That strikes me as a policy issue that would be better debated and decided by the Judiciary Committee than an Appropriations subcommittee,” Collins said.

Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) said he is open to the idea but wanted to talk to Van Hollen.

“I think it’s long overdue,” Durbin told The Early.

Such an effort would need to make it through the Republican-controlled House to become law. Some key Republicans were noncommittal, saying they would need to closely examine the proposal.

Rep. Steve Womack (R-Ark.), the chairman of the House Appropriations subcommittee that oversees the court’s budget, said he had not heard anything about Van Hollen’s proposal and would need to give it a close look. He also said he would want to speak to Roberts.

Sen. Lindsey O. Graham (S.C.), the top Republican on the Senate Judiciary Committee, has previously supported stricter ethics rules for the court, joining with Whitehouse to pressure the justices in 2021.

He said he wasn’t sure yet whether he would get behind Van Hollen’s proposal.

A budget hearing with the justices?

Budget hearings are an opportune time for lawmakers to press the justices on important matters, from the diversity of the law clerks they hire to adopting a binding code of ethics.

  • But the justices haven’t appeared before the House Appropriations Committee in four years. They usually don’t testify before the Senate Appropriations Committee.

Justices Elena Kagan and Samuel A. Alito Jr. were present at the last hearing in March 2019. At that time, Kagan told the panel that Roberts was seriously considering a judicial code of conduct.

Womack said he is interested in holding such a hearing this year, but he wasn’t sure the committee would because House appropriators are working under a “compressed schedule.”

Programming note

Leigh Ann will speak with Steven Dettelbach, director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, at 3 p.m. Eastern time today to discuss his agency’s work to combat the illegal distribution of firearms, gun violence in the United States and the recent mass shooting at a Nashville school that left six dead. Watch here. 

Related: Check out The Post’s multipart series on the AR-15 and similar weapons. 

From the courts

Trump to be arraigned Tuesday as another investigation heats up

The House and Senate are out this week (and next) for the holidays, so all eyes are trained on the legal troubles facing former president Donald Trump. 

Trump’s arraignment on Tuesday at a Manhattan criminal court is set. The indictment is sealed and the charges are not yet known, but the case appears to center on an alleged hush-money payment to adult-film actress Stormy Daniels.

In typical Trump fashion, he is capitalizing on the indictment, fundraising and holding an event at Mar-a-Lago on Tuesday night, signaling that he will quickly return to his winter retreat hours after he stands before Judge Juan Merchan

As our colleague Josh Dawsey reports, Trump is working to persuade elected officials to attend his event.

But our colleagues report that another investigation into the former president is becoming more pointed. 

Based on new evidence, the Justice Department is zeroing in on possible obstruction by Trump in the investigation into whether he took classified documents to Mar-a-Lago, Devlin Barrett, Perry Stein and Josh report.

  • “The emphasis on obstruction marks a key distinction so far between the Mar-a-Lago investigation and a separate Justice Department probe into how a much smaller number of classified documents ended up in an insecure office of President Biden’s, as well as his Delaware home,” our colleagues write.

More coverage to catch you up on the first indictment of a former president: 

What we're watching

Election Day: Voters in Chicago and Wisconsin will head to the polls on Tuesday in races that have been shaped by two hot-button campaign issues: crime and abortion.

  • Chicago: Paul Vallas, the former chief executive of Chicago Public Schools who secured the endorsement of the police union, will face former teacher and Cook County Commissioner Brandon Johnson in the race to succeed Chicago Mayor Lori Lightfoot, who failed to make the runoff election.
  • Wisconsin: Voters must decide between liberal Milwaukee County Judge Janet Protasiewicz and her conservative opponent, former state Supreme Court justice Daniel Kelly, in a race that could upend 14 years of conservative dominance of Wisconsin’s Supreme Court. 
  • This is the most expensive judicial race in history and comes as the fallout from the Supreme Court’s decision to overturn Roe v. Wade continues to dominate U.S. politics — from a looming federal court ruling in Texas that could restrict access to the abortion drug mifepristone to a Florida bill moving through the legislature that would replace the state’s 15-week abortion ban with a six-week abortion ban.

Wednesday: House Speaker Kevin McCarthy (R-Calif.) is slated to meet with Taiwanese President Tsai Ing-wen at the Ronald Reagan Presidential Library in California.

At the White House

On foreign policy, Biden’s gut is his guide

Inside Biden’s ‘fluency on foreign policy’: Our colleague Yasmeen Abutaleb interviewed nearly two dozen individuals, including lawmakers and White House aides, in an attempt to decipher President Biden’s approach to foreign policy — which is largely guided by his gut instincts and “has led to a willingness to overrule military commanders, diplomatic experts and others.”

  • A recent example of this, Yasmeen writes, is Biden’s handling of a missile crisis in Poland that would have escalated the war in Ukraine. That “moment reflected key elements of Biden’s approach to foreign policy … He reacted instinctively, relied heavily on relationships with other world leaders and showed few qualms about departing from a carefully scripted statement.”

Biden’s week ahead

President Biden dined with Ted Kaufman, his longtime Senate chief of staff, on Sunday night at Fieldstone Golf Club in Delaware. He’s flying straight to Minnesota from Delaware this morning the latest stop on a tour selling Americans on the benefits of the 2021 infrastructure law, Democrats’ climate law and the legislation he signed last year to bolster domestic semiconductor manufacturing.

Biden will speak at a Cummins engine plant in Fridley, Minn., a Minneapolis suburb. Cummins is expected to announce that it is investing $1 billion in upgrading its engine plants to make low-emission and emission-free engines, according to a White House official. 

Biden will have an abbreviated week in Washington once he returns from Minnesota tonight. He and first lady Jill Biden are heading to Camp David on Thursday and will stay through the weekend.

The Media

Must reads

From The Post: 

From across the web: 



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