POLITICO (“D.C. Attorney General is probing Leonard Leo’s network“):
Washington D.C. Attorney General Brian Schwalb is investigating judicial activist Leonard Leo and his network of nonprofit groups, according to a person with direct knowledge of the probe.
The scope of the investigation is unclear. But it comes after POLITICO reported in March that one of Leo’s nonprofits — registered as a charity — paid his for-profit company tens of millions of dollars in the two years since he joined the company. A few weeks later, a progressive watchdog group filed a complaint with the D.C. attorney general and the IRS requesting a probe into what services were provided and whether Leo was in violation of laws against using charities for personal enrichment.
David B. Rivkin Jr., an attorney for the parties in the investigation, said in a statement that the complaint “is sloppy, deceptive and legally flawed and we are addressing this fully with the DC Attorney General’s office.”
The news of the investigation comes as the nonprofit that was a subject of the complaint quietly relocated in recent weeks from the capital area to Texas, according to paperwork filed in Virginia and Texas. For nearly 20 years the nonprofit, now known as The 85 Fund, had been incorporated in Virginia.
Gabe Shoglow-Rubenstein, Schwalb’s communications director, declined to confirm or deny the existence of the probe, including whether the attorney general took any action in response to the complaint.
Schwalb, who took office in January, has a background in tax law and served as a trial attorney in the tax division of the Department of Justice under President Bill Clinton.
Best known as Donald Trump’s White House “court whisperer,” Leo played a behind-the-scenes role in the nominations of all three of the former president’s Supreme Court justices and promoted them through his multi-billion-dollar network of nonprofits. Trump chose his three Supreme Court picks, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, from a list drawn up by Leo. More recently, Leo was the beneficiary of a $1.6 billion contribution, believed to be the biggest political donation in U.S. history.
He is also the co-chair of the Federalist Society, the academic arm of the conservative legal movement, for which he worked in various capacities for decades while building his donor base.
While the investigation of a major figure in Republican circles by an elected partisan official from the Democratic Party is naturally going to raise eyebrows, it sure looks like Leo is using the non-profit status of some of his entities to shelter profits. That naturally cries out for investigation.
Real estate and other public records illustrate that the lifestyle of Leo and a handful of his allies took a lavish turn in the course of the making of the current ultraconservative court, beginning in 2016, the year he was tapped as an unpaid adviser to Trump. Citing the report, a progressive watchdog group called on the IRS and D.C. Attorney General a few weeks later to investigate whether the groups may be violating their tax-exempt status by “siphoning” assets or income for personal use.
Anthony Burke, a public affairs specialist with the IRS, declined to comment. “Under the federal tax law, federal employees cannot disclose tax return information,” he said.
The Leo-aligned nonprofit The 85 Fund — which is registered as a tax-exempt charity — paid tens of millions of dollars to a public relations firm in Virginia which he co-chairs in the two years since he joined the firm, known as CRC Advisors.
The watchdog complaint alleges the total amount of money that flowed from Leo-aligned nonprofits to his for-profit firms was $73 million over six years beginning in 2016.
“There are questions as to whether Leo-affiliated nonprofits have diverted substantial portions of their income and assets, directly or indirectly, to the personal benefit of Leonard Leo,” read the Campaign for Accountability’s complaint.
“Such payments were generally listed as made in exchange for alleged consulting, research, public relations, or similar services. However CFA has reasonable questions about whether those alleged services were actually rendered at all or, if services were rendered, whether the payments made were substantially in excess of fair market value,” said the complaint, which covers the period between 2016 and 2020.
POLITICO reported that a total of $43 million flowed to Leo’s company over two years and that the bulk of it came from The 85 Fund, a nonprofit run by his allies which has spent tens of millions of dollars over the past decade to promote Trump’s Supreme Court picks, file briefs before the court and, more recently, used an alias to push for voting restrictions and accuse Democrats of cheating in the 2020 election.
It is now run by Carrie Severino, an attorney and former clerk for Justice Clarence Thomas listed as director in the group’s most recent IRS paperwork and is collecting massive amounts of anonymous funds: $117 million in 2021.
In discontinuing the group in the state of Virginia, the new address Severino listed is a virtual office suite in Fort Worth, Texas, shared by a “Two Men and a Truck” franchise. The office building advertises virtual and coworking spaces.
Further complicating the picture: in Texas, a new registration for “The 85 Fund” was filed on June 27 under yet a different address in a different city than the one listed on the Virginia paperwork. It is also registered in Texas as a for-profit entity.
This location is a UPS store in a strip mall next door to a restaurant called the “Snooty Pig Cafe.” As POLITICO previously reported, The 85 Fund had been using a UPS drop box in DC’s Georgetown neighborhood as its principal office address.
Beginning in 2016, Leo formed or helped reorganize two for-profit businesses — CRC Advisors and BH Group — to perform millions of dollars in services for his aligned nonprofits.
In those five years, BH Group brought in $15 million from the nonprofits. Yet unlike CRC, BH Group doesn’t appear to have advertised itself as a consulting or public relations firm, or even have had a website. During some of that time, Leo was employed full-time as a vice president at the nonprofit Federalist Society, raising questions about how he could have reasonably generated millions of dollars in consulting fees at the same time, the complaint says.
The 85 Fund’s switch to the Fort Worth office building came days after POLITICO inquired, on June 30, about certain Leo allies who may have personally benefited from millions in anonymous donations that moved through the 85 Fund over the past decade.
A number of the groups that receive contributions from Leo’s “dark money” network, in turn, hold sizable contracts with his firm, CRC Advisors. This includes the Federalist Society, the nation’s preeminent conservative debating society where Leo was executive vice president and still serves as co-chairman. Among payments the complaint flagged to the IRS and DC attorney general is $3.1 million which the Federalist Society paid to CRC between 2020 and 2021 for “media training.”
It’s entirely possible that this is entirely legal under our arcane tax laws. It’s wildly unethical, though, and certainly shouldn’t be legal. Then again, I’ve long been skeptical of the whole category of “non-profit” entities. Everything from religious groups to political activist organizations to billion-dollar college football programs and the National Football League* are shielded from taxes by claiming that status.
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*Sort of. It’s complicated. See posts that Doug Mataconis and I wrote in 2014 and 2013, respectively.
