• ProPublica included a crucial detail in the 73rd paragraph of its story alleging Justice Samuel Alito violated ethics rules for failing to disclose a private jet ride he accepted: a federal judge, who went on the trip with Alito, previously asked the judiciary’s financial disclosure office for guidance on a similar trip and was told his transportation was not reportable.
• “ProPublica buries the answer that destroys its own story,” Mark Paoletta, a Schaerr Jaffe law firm partner who has worked on the confirmations of multiple justices and is a close friend of Thomas’, told the Daily Caller News Foundation. “The Judicial Conference—the governing body that determines how law is implemented for the judiciary—advised Judge Randolph that he did not need to disclose a similar trip under existing rules. So how can ProPublica possibly argue that Justice Alito had to disclose?”
• Alito preempted ProPublica’s story in an op-ed published by the Wall Street Journal earlier Tuesday night, slamming the outlet as “mislead[ing] its readers.”

ProPublica buried a detail that undermines the premise of its most recent piece alleging a conservative Supreme Court justice violated ethics rules—this time Justice Samuel Alito, not Justice Clarence Thomas—in the 73rd paragraph of its story.

ProPublica published a story late Tuesday night alleging Alito violated federal law by failing to disclose an Alaska fishing trip he took in 2008 with billionaire Paul Singer and others, which he traveled to on a private jet provided by Singer. In the 73rd paragraph, it reveals a federal judge who went on the trip with Alito, Judge A. Raymond Randolph of the Court of Appeals for the District of Columbia, asked the judiciary’s financial disclosure office for advice after taking a similar fishing trip in 2005 with the late Justice Antonin Scalia and conservative donor Robin Arkley II: the office said his transportation on a private jet did not need to be disclosed.

Randolph still has his notes from his 2005 call with the office, which said “don’t have to report trip to Alaska with Rob Arkley & others / private jet / lodge,” according to what he shared with ProPublica.

“ProPublica buries the answer that destroys its own story,” Mark Paoletta, a Schaerr Jaffe law firm partner who has worked on the confirmations of multiple justices and is a close friend of Thomas’, told the Daily Caller News Foundation. “The Judicial Conference—the governing body that determines how law is implemented for the judiciary—advised Judge Randolph that he did not need to disclose a similar trip under existing rules. So how can ProPublica possibly argue that Justice Alito had to disclose?”

“I don’t understand how the staff member came to that conclusion based on the language in the statute,” Kathleen Clark, an ethics law expert at Washington University in St. Louis, told ProPublica.

In its earlier story detailing Thomas’ trips with Harlan Crow, ProPublica entirely left out the fact that the Judicial Conference already reviewed complaints Thomas didn’t disclose these trips and determined in 2012 that nothing showed he had “willfully or improperly failed to disclose information concerning travel reimbursements.”

“ProPublica is [a] leftwing attack dog that is part of a coordinated smear campaign of the Supreme Court and takes its marching orders from its wealthy leftwing donors,” Paoletta continued. A DCNF review of tax documents revealed that ProPublica’s biggest donors also fund several groups calling for Thomas to be investigated or resign.

Alito preempted ProPublica’s story in an op-ed published by The Wall Street Journal earlier Tuesday night, slamming the outlet as “mislead[ing] its readers.” (RELATED: ProPublica’s Top Donors Also Bankroll Activist Groups Targeting Justice Clarence Thomas)

“When I joined the Court and until the recent amendment of the filing instructions, justices commonly interpreted this discussion of ‘hospitality’ to mean that accommodations and transportation for social events were not reportable gifts,” Alito wrote. “The flight to Alaska was the only occasion when I have accepted transportation for a purely social event, and in doing so I followed what I understood to be standard practice.”

Virginia Canter, a Citizens for Responsibility and Ethics in Washington (CREW) ethics expert quoted by ProPublica, told the outlet the exception “only covers food, lodging and entertainment” and said Alito is “trying to move away from the plain language of the statute and the regulation.” CREW is one of multiple organizations calling for Thomas’ resignation backed by the same donors as ProPublica, the DCNF found.

In April, Thomas said colleagues advised him “personal hospitality from close personal friends, who did not have business before the Court, was not reportable.”

The piece also notes Singer’s hedge fund came before the court “at least 10 times,” including in a 2014 case dealing with a dispute between the hedge fund and Argentina, noting that Alito did not recuse himself. Alito said in his op-ed that he was “not aware and had no good reason to be aware that Mr. Singer had an interest in any party.”

“The entities that ProPublica claims are connected to Mr. Singer all appear to be either limited liability corporations or limited liability partnerships,” he said. “It would be utterly impossible for my staff or any other Supreme Court employees to search filings with the SEC or other government bodies to find the names of all individuals with a financial interest in every such entity named as a party in the thousands of cases that are brought to us each year.”

73d graf. (Also, Randolph producing contemporaneous notes of ethics compliance advice he received over the phone 18 years ago is impressive.) https://t.co/LJ4pesNmu7 pic.twitter.com/VxFLhTxdhu

— Derek T. Muller (@derektmuller) June 21, 2023

Federalist Society Co-Chairman Leonard Leo, who helped organize the fishing trip Alito participated in, said in a statement that the justice talked about it “in front of dozens of journalists and over 2000 people after being introduced by Paul Singer at a Federalist Society dinner fourteen years ago,” but noted “nobody questioned Justice Alito’s impartiality then, or thereafter.”

“Justice Alito did not know Paul Singer had interests in the cases cited by Pro Publica because Singer’s name does not appear anywhere in court records or documents,” Leo said. “You cannot possibly provide special treatment or favor to someone if you don’t know they are involved in a case.”

Other legal experts slammed the ProPublica story on Twitter.

“[W]ere Alito and Thomas supposed to get in a time machine and head to 2023 to ask ProPublica and left wing law professors their views on the disclosure issue? Or trust the Judicial Conference?” Adam Mortara, who was the lead trial lawyer for Students for Fair Admissions v. Harvard, tweeted.

“Can’t believe Alito voted against gay rights after accepting a trip from the very pro-gay rights donor Paul Singer,” tweeted David Boaz, distinguished senior fellow at the Cato Institute.

Singer launched the American Unity PAC, which pushed conservative acceptance of same-sex marriage, in 2012.

Josh Blackman, constitutional law professor at the South Texas College of Law Houston and Cato Institute adjunct scholar, wrote Tuesday night in Reason that ProPublica’s claim to produce “investigative journalism with moral force” amounts to “ambushing conservatives with misleading accounts of dated accusations that, at worst, concerned good faith attempts to comply with the rules.”

“Justice Alito was prudent to release his statement in advance of the publication. Once again, ProPublica failed to place the allegations in context,” Blackman told the DCNF. “Specifically, there was no realistic way for Justice Alito to have even known that recusal may be warranted. Moreover, another judge requested advice, and was cleared to take a similar hunting trips a few years earlier. We have yet to see any actual allegations that a Justice knowingly violated the rules.”

ProPublica declined to comment.

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