Bench Memos

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Eugene Fidell and the National Institute of Military Justice—Part 2


In 2005, Eugene Fidell’s National Institute of Military Justice received its first significant grant—$255,000 in general support from George Soros’s Open Society Institute, a lavish supporter of a broad array of left-wing causes.  That grant, NIMJ states in its 2006 annual report, enabled it to “expand[] its influence and activities exponentially.”


A few comments/questions about this Soros connection:


1.  Given that Soros’s support has been of such great benefit to Fidell and NIMJ, does Greenhouse have a conflict of interest in reporting on Supreme Court cases in which other Soros-funded entities participate? 


I should make clear that I am not contending that any of the Soros support went to Fidell as income.  On the contrary, I infer from NIMJ’s tax filings that none did.  The primary respect in which Fidell benefited was, rather, from the “exponentially” expanded impact that NIMJ was able to have.


2.  In May 2003, Fidell wrote a review of the autobiography of Aryeh Neier, president of the Open Society Institute.  Fidell heaped praise on Neier and his book, as this opening paragraph indicates: 


Most autobiographers probably hope they’ll end up being loved. It’s not clear how many readers of ‘’Taking Liberties’’ will love Aryeh Neier — but there’s little question that they’ll admire him. Neier (whom J. Edgar Hoover thought ‘’too rigid’’ and George Soros has described as ‘’very pure’') is one of the world’s leading civil liberties and human rights figures. He has been the head of the New York and American Civil Liberties Unions and Human Rights Watch, and (since 1993) president of the Soros Foundations and the Open Society Institute. It’s difficult to imagine better vantage points from which to have witnessed New York, American and world history since the 1960′s. What emerges here is a subtle intelligence joined with an iron dedication to improving civil society.


And where did this review appear?  In Linda Greenhouse’s New York Times.  Someone suspicious of the vast left-wing conspiracy might wonder whether Greenhouse helped Fidell butter up Neier for his Open Society Institute grant application.  (Speaking of the left-wing conspiracy:  One of the other name partners in Fidell’s law firm is Marna Tucker, whom faithful Bench Memos readers might recall for her creative efforts to sabotage Brett Kavanaugh’s D.C. Circuit nomination.)


3.  For tax geeks and IRS officials only:  I’m no tax expert, but there seems to me a serious question whether NIMJ’s 2006 tax filing (Form 990) properly accounts for the Open Society Institute grant—and whether NIMJ’s status as a public charity ought instead to be in jeopardy.  Specifically, in its public-support calculation, the filing treats OSI’s payment in 2005 of the first half ($127,500) of the grant amount entirely as though it were public support, presumably on the theory that the grant qualifies as unusual.  But as I read the relevant regulations, a grant for operating expenses cannot count as unusual unless it is “expressly limited to one year’s operating expenses.”  OSI’s grant to NIMJ was for a 30-month period.  If the grant does not qualify as unusual, then NIMJ’s public-support percentage would fall from 99.97% to 3.22%—well below the 33.33% requirement.

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