On top of my Part 1 post, I have a few additional thoughts to offer on Heidi Przybyla’s reporting in her Politico article:
1. Przybyla frontloads isolated facts and allegations designed to suggest impropriety on Justice Gorsuch’s part. I suppose that is the way to get much more attention for an article than it deserves. And perhaps the cheap whacks that framing invited is a feature, not a bug.
2. By Przybala’s own account, Brian Duffy and his wife closed on the purchase of the house in May 2017. You’d think that would lead Przybala to wonder why the Walden Group LLC transaction that Gorsuch lists is dated December 31, 2017. But Przybala doesn’t point out the seeming anomaly, much less explore it. Why not? Perhaps because leaving that matter obscure is essential to this charge of hers:
Gorsuch did not disclose the identity of the purchaser. That box was left blank. [Emphasis added.]
Przybala gives the reader the impression that Gorsuch reported the sale of the property but not the purchaser. But as I explain in my Part 1 post (and as the tweet thread I linked to addresses more fully), what Gorsuch was required to report, and did report, was the transaction by which he terminated his 20% stake in Walden Group LLC. It would have made no sense—it would have been a false statement—to list Duffy in the box.
3. Playing into the Left’s broader narrative, Przybala asserts that the “real estate transaction is another example of how the lack of a firm code of ethics for the court stands in contrast to most other branches of the U.S. government, including the White House and Congress as well as lower court judges.” (Emphasis added.)
This assertion makes no sense. Assume that Gorsuch had remained on the Tenth Circuit through 2017 and that the same sale from Walden Group LLC to Duffy had taken place. What possible reason is there to think that Gorsuch’s report would be any different?
Przybala goes on to state that the “code of conduct for lower court U.S. judges … ‘discourages frequent transactions or continuing business relationships with lawyers of other persons likely to come before the court’ on which the judge serves.” But “the Supreme Court lacks a code of conduct.”
What does this have to do with anything? What we have here is a single isolated real-estate transaction with someone not likely to come before the Court.
Further, the Code of Conduct for United States Judges itself says only that it “is designed to provide guidance to judges.” All of the Supreme Court justices have recently affirmed that they draw guidance from the Code of Conduct. So the contrast that Przybala draws here is illusory.
4. Przybala happens to cherry-pick the very same supposed ethics expert that ProPublica cited in its recent charge against Justice Thomas: Kedric Payne. It’s not enough for Przybala to assure us that Payne’s employer, the Campaign Legal Center, is “nonpartisan.” She also adds that it “was founded by a Republican former chair of the Federal Election Commission.” You might think it more relevant that Payne served in the Obama administration (as deputy general counsel in the Department of Energy), but Przybala doesn’t disclose that.
According to Przybala, Payne “believes ‘investments in LLCs require more details than the justice includes in his financial disclosures.’” Well, does he have anything to cite for that belief?
The two ethics experts quoted by the New York Times on this matter—law professor Stephen Gillers and Fix the Court’s Gabe Roth—said that Gorsuch “did not break the law by omitting the buyer’s identity” (even as they support reforms that would expand disclosure requirements).
Przybala also paraphrases Payne as “noting more facts are needed to distinguish whether it’s a disclosure omission or violation.” I have no idea what this supposed distinction might mean.