Senator Warren’s ‘Inappropriate’ Letter to a Judge Echoes Line of Bankman-Fried

The former Harvard law professor should know better than to violate the separation of powers laid out in the Constitution by intervening so baldly in the FTX legal proceeding.

AP/Jacquelyn Martin, file
Senator Warren during a Senate Banking Committee hearing, September 22, 2022. AP/Jacquelyn Martin, file

A federal judge is rebuking Senator Warren for what the judge called “an inappropriate ex parte communication” in the bankruptcy case involving FTX, the cryptocurrency exchange led by Sam Bankman-Fried. Ms. Warren, a former Harvard law professor, should know better than to violate the separation of powers laid out in the Constitution by intervening so baldly in a legal proceeding in which neither she personally nor the United States Congress is a party. 

Had it been President Trump or even Senator Cruz meddling with an ongoing court case, the television legal ethics experts would have been on the air stoking outrage faster than you can spell Stephen Gillers.

The situation and the reaction illuminate two larger principles.

The first is the partisanship of the press. Had the letter come only from Ms. Warren, the right-wing media might have had a field day with it. Had it been exclusively from Republican senators, the left-wing media might have had a field day with it.

The letter, though, came from Ms. Warren and three other senators, for a total of two Democrats and two Republicans. The senators who joined Ms. Warren were John Hickenlooper of Colorado, Thom Tillis of North Carolina, and Cynthia Lummis of Wyoming. 

The only outlet that made a story out of it, as far as I can tell, is Bloomberg. That terminal, at its best, channels the independence of its namesake. 

Judge Slams Senators’ Letter Targeting FTX Bankruptcy Lawyers,” was the Bloomberg headline. It soft-pedaled the attack on Senator Warren, against whom Michael Bloomberg might reasonably bear a grudge, but at least it grasped the gravity of the issue. Bloomberg quoted the judge, John Dorsey, as vowing that the letter “will have no impact on my decisions.” 

Because the judge apparently did receive it and read enough of it to label it as “inappropriate,” it’s difficult to know for sure whether it will or won’t affect the judge’s decisions. That’s a good reason why such letters are forbidden — because the public, and the parties, should have confidence that the court is making decisions based on the law and the facts, rather than on the basis of political pressure applied by members of Congress.

Another theme underscored by the Warren letter might be called Warrenism. H.L. Mencken defined Puritanism as: “The haunting fear that someone, somewhere, may be happy.” Warrenism is the haunting fear that someone, somewhere, is earning more money than a Harvard law professor.

Thus the Warren letter’s pointed mention that Sullivan & Cromwell “charged over $8,500,000 in legal fees to FTX prior to bankruptcy for advising FTX on a variety of legal matters.”

Eight and a half million may sound like a large sum, even after the Biden-Warren-Schumer-Sanders inflation, but it pales beside the more than $37 million Bankman-Fried poured into political donations, largely to Democrats, in the 2021-22 political cycle alone. Those donations included sums channeled through the Massachusetts Democratic State Committee ($10,000 on October 7, 2022) in Ms. Warren’s state. 

Sam Bankman-Fried’s father, a Stanford law professor, Joseph Bankman, donated $2,500 to Ms. Warren’s Senate campaign in December 2011; Mr. Bankman-Fried’s mother, a Stanford law professor, Barbara Fried, gave the Warren campaign $2,700 in 2017 and $2,500 in December 2011, according to Federal Election Commission records.

The anti-Sullivan & Cromwell tune being sounded by Ms. Warren is suspiciously similar to the negativity being sounded by Mr. Bankman-Fried, who in December publicly blamed the firm for “pressuring me to quickly file for Chapter 11.” Mr. Bankman-Fried has pleaded not guilty to criminal fraud and other federal charges related to the collapse of FTX.

Disclosure of potential conflicts is an important principle in bankruptcy law, and bankruptcy itself is a mixed constitutional creation, as it involves not only federal judges but also the U.S. bankruptcy trustee, which is part of the Department of Justice. Regardless, Judge Dorsey is perfectly capable of sorting out the issues without Senator Warren appointing herself as his law clerk. That grab exceeds the Senate’s enumerated Article I power to enact “uniform laws on the subject of bankruptcies.”

The tantalizing thing is that the Senate meddling in the bankruptcy case could be a preview of attempted interference in the criminal trial. Perhaps the weeks ahead will see the politicians to whom Mr. Bankman-Fried donated writing ex parte letters on his behalf to the judge in his criminal case.

Here’s hoping that the criminal judge rejects any such meddling as emphatically as did the bankruptcy judge. Such letters belong in the sentencing phase, if it comes to that. 

As for the senators, the ultimate judge and jurors in their cases are the voters. With any luck, they will eventually hold Ms. Warren to account for eroding the rule of law.

The New York Sun

© 2024 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  create a free account

By continuing you agree to our Privacy Policy and Terms of Use