Politico dove face-first into the shallow end of this pool with a pair of articles over the past week.
We are heading into the spring home stretch for the Supreme Court, which has (depending upon how you count them) 49 cases left on its docket to decide in the next three months. That works out to an average of 3.7 decisions a week between Monday and the end of June, on a broad array of issues including free speech, social media, the administrative state, abortion, gun rights, Trump prosecutions and presidential immunity, redistricting, and constitutional limits on taxation. That means we get a predictable rise in efforts by the Left and its media wing to alternately smear the justices, spin conspiracy theories about the conservative legal movement, and gin up implausible legal theories to get the Left what it wants. The reverent coverage of the Christine Blasey Ford book tour is one example of that.
Politico dove face-first into the shallow end of this pool with a pair of articles over the past week. First up was Heidi Przybyla on “What happens when an AG dares to investigate Leonard Leo’s network.” Przybyla has been a persistently overwrought and misleading voice in the chorus attacking the conservative judges, the conservative legal movement, and Leo personally. Just since December 2022, that has included a vague hit piece implying that Leo took advantage of the Federalist Society by poaching its donors, an illogical hit job on Justice Neil Gorsuch over the sale of a house, a misleading and conspiratorial attack on Supreme Court amicus briefs that overstated Leo’s role, a non sequitur about Leo having helped Kellyanne Conway sell her polling company seven years ago, and — most publicly — a bizarrely overwritten and borderline libelous attack on “Christian nationalism” that mislabels the players and confuses the concept with natural law and natural rights, a confusion that Przybyla made explicit in an ill-considered MSNBC interview denouncing the radical notion that our rights are something we are endowed with by our Creator. (Przybyla was previously at NBC News, where she produced shoddy and misleading Covid reporting).
The latest Przybyla folly is her suggestion that it is somehow terribly improper for D.C. attorney general Brian Schwalb to face criticism for launching an investigation targeting Leo: “Since news of the probe broke last August, the GOP chairs of powerful congressional committees launched their own investigation of Schwalb’s investigation; conservative media wrote articles criticizing Schwalb on unrelated crime issues — based on a social media post from a top Leo lieutenant; and a group of his Republican law enforcement peers sent letters warning Schwalb to stand down.” Przybyla’s passive “news broke” framing neglects to mention (until the very end of the article, in a reference not naming the author) that she is the one who pushed the story public, first with a March 2023 report on the advocacy group demanding an investigation, and then an August 2023 report on Schwalb dutifully launching one. In fact, “Schwalb’s office has not confirmed the existence of its probe.” So, Przybyla is not a passive observer here but an engine driving the probe. It’s odd for her to frame a storm of public criticism as somehow a sign that Schwalb is doing something noble or that his critics are malicious, given that she herself has been an integral part of a similar storm directed at Leo and the Court. Much of the rest of her article consists of stringing together examples of political allies of Leo, many of them past recipients of his support and donations, springing to his defense. But, again, it is asymmetrical for her to paint Leo’s defenders as a coordinated conspiracy, while acting as if her own role is not as an actor in a plainly coordinated campaign against the justices and the conservative legal movement.
The investigation itself reeks of political targeting. As National Review‘s editorial noted:
Campaign for Accountability has targeted Leo, alleging that consulting fees paid by Leo’s nonprofits to other for-profit groups he operates are improper. There is no pretense that such consulting arrangements are unusual in this space. But Campaign for Accountability found a willing client in D.C. attorney general Brian Schwalb, who has dutifully launched an investigation that seeks information about Leo’s network — information valuable to the left-leaning activist journalists who have produced reams of hit pieces in the past few months. Senate Judiciary Committee Democrats, led by Dick Durbin and Sheldon Whitehouse, are pursuing a separate investigation of Leo.
In each case, the aims are to impose the costs of the process on Leo, to blacken his reputation, and to gain intelligence on his activities. Schwalb’s interests are apparent: In addition to being an elected Democrat in the bluest jurisdiction in the country, he was previously the partner-in-charge of the home office of a law firm that represented Arabella organizations. His chief deputy, Seth Rosenthal, was formerly legal director of the Alliance for Justice, one of the groups Leo sought to counter.
This is a particularly poor use of Schwalb’s resources, while he does little to stem the tide of carjackings and other violent crimes plaguing his city. It’s also based entirely on speculation, as the Wall Street Journal has observed:
The Campaign for Accountability admits it doesn’t know what services BH Group or CRC provided, or their value, given that “the entities generally do not publicly market, advertise, or even describe their services,” and that “details” of “the business transactions” aren’t publicly available. The complaint nonetheless demands that authorities “compel” the nonprofits to hand over details.
Mr. Schwalb responded in June with subpoenas. This is remarkable because the D.C. AG lacks jurisdiction. All of Mr. Leo’s affiliated businesses and nonprofits mentioned in the complaint are based outside of D.C., including in Virginia or Texas. Under a longstanding legal principle known as the internal affairs doctrine, matters relating to an entity’s internal workings are governed by the laws of the state of its incorporation and enforced solely by that state’s officials.
Nowhere does Przybyla argue that there’s evidence of any particularly serious legal offense here, or that Schwalb is doing something ordinarily done by prosecutors; the best she can muster is to claim that there’s a legal fig leaf to justify Schwalb’s overreach: “The [Republican] AGs’ letter challenged Schwalb’s jurisdiction to investigate Leo’s nonprofits, a claim which has been disputed by some charitable tax experts, including officers in other states.” There are few surer signs of lawfare than stringing together a legal theory seldom enforced in a particular context, on thin evidence, at the insistence of activists, against the prosecutor’s political enemies, in ways that violate longstanding norms, and responding with “it’s possible that this novel theory is legal.”