1. The March 2016 Grant Agreement with an Anonymous Donor Designated a Third-Party Beneficiary Which Has Been Revealed to be the Federalist Society

Emails before the change in the name of the Law School show that there was already a relationship between Scalia Law Dean Henry Butler (who was appointed in April 2015), and Leonard Leo, Executive Vice President of the Federalist Society. Mr. Leo is best known for his role in recommending conservative judges, including now-Justice Neil Gorsuch, to the Trump Administration. In September 2015, the two exchanged emails about fundraising, with Dean Butler sharing his “Five-Year Plan for Mason Law” with Mr. Leo, for which Mr. Leo provided his “wise counsel” (pp. 11-36).

In late February 2016, less than two weeks after Justice Scalia’s untimely death, an anonymous “donor ... approached” Mr. Leo, “a personal friend of the late Justice Scalia and his family,” about renaming the Law School (p. 225). Mr. Leo in turn approached Dean Butler, who immediately told GMU Vice President Janet Bingham at 6:40 am on February 26, 2016 that the “deal came together last night” (p. 59). The next day, Dean Butler pronounced this a “game changer for Mason Law” and said he was “Off to Cabo for a week of R&R” (p. 60). Two weeks later, Mr. Leo met with the Scalia family to secure their approval, saying “I am spending the weekend with Scalia family and will be making sure they are good with the naming” (pp. 65-66). Less than one month after Dean Butler’s pre-dawn text to Vice President Bingham, March 31, 2016 Grant Agreements were finalized with the Charles Koch Foundation and the anonymous donor. The Koch Foundation agreement provided for grants to the GMU Foundation totaling $10 million over a five year period. The agreement with the anonymous donor provided $4 million per year for five years, conditioned on yearly determinations by the donor and a “third party beneficiary” in their “sole and absolute discretion,” based on “written proposals” prepared by the George Mason Foundation, that the Law School is fulfilling a defined “Mission.” That “Mission” is to “[r]etain focus on the study of Law & Economics…which furnishes the faculty with a common culture” and to “[d]evelop additional related areas of concentration and intellectual leadership such as…constitutional studies, administrative law, and the relationship between law and liberty,” including a new “Center for the Study of the Administrative State” and “Center for Liberty & Law.” The Grant Agreement deemed Dean Butler a “critical part of advancing the School’s Mission,” and requires immediate notice to be given to the donors and third-party beneficiary “if the individual holding the Dean position changes” (pp. 150, 152-53).

George Mason University initially redacted the name of the third-party beneficiary when the Grant Agreements were produced to BuzzFeed News in late April 2016. But in response to repeated FOIA requests from Ms. Pienta, GMU finally produced a version of the Grant Agreement in August 2017 that identified the third-party beneficiary as the “BH Fund,” a “501(c)(4) Virginia nonstock corporation” (p. 150). As the third-party beneficiary in the Grant Agreement, the BH Fund has been given “the right to enforce all of the Donor’s rights in th[e] Agreement,” including the right to “terminate th[e] Agreement” if “in its sole and absolute discretion” the Law School “is no longer principally focused on the School’s Mission.” The BH Fund was also given the right to “review and approve ... proposed publicity about the conversion to the School Name” (p. 153).

Further research by Ms. Pienta in the Virginia State Corporation Commission’s registry and annual reports revealed that the BH Fund’s President is the Federalist Society’s Leonard Leo and that its Secretary-Treasurer is Jonathan Bunch, Vice President of the Federalist Society. The BH Fund was organized by the law firm of Holtzman Vogel Josefiak & Torchinsky in Warrenton, VA, whose named principal, Jill Vogel, was the Republican nominee for Lieutenant Governor of Virginia in November 2017. Zoe Tillman of BuzzFeed News confronted Mr. Leo with the connection to the BH Fund and he confirmed that he is “responsible for making sure that the law school remains true to its principles over the course of the gift.” He added, “Those principles are not all that different from what you would expect from any academic institution: a commitment to academic freedom and a due respect for intellectual diversity and the freedom of expression. And in particular a commitment to excellence.” 11/20/2017 BuzzFeed article. In an April 4, 2018 speech at the Christian conservative Hillsdale College in Michigan, Mr. Leo expressed the darker view that there can be “no mistake” that “law school teaching” has only “tipped its hat” to covering the “originalism and textualism” that Justice Scalia advocated because “political” and “external forces have been brought to bear” like holding “a Federalist Society meeting on it at 4 pm that same day.” Link to YouTube video of speech (beginning at 29:08).

The New York Times has further uncovered that a Virginia-based entity called the BH Group whose ownership is “difficult to discern” made a $1 million contribution to the Trump Inauguration in December 2016. 4/20/2017 New York Times article. While the names of the individuals associated with the BH Group are not public information, the individual listed as the BH Group’s “Organizer” in its Articles of Organization is the same individual listed as the Organizer of the BH Fund. Any suggestion that the BH Fund may be an unauthorized project of Mr. Leo and Mr. Bunch is dispelled by the presence of Eugene Meyer, the Federalist Society’s President, on an April 28, 2016 email to Mr. Leo (pp. 432-33).

Following the law school’s announcement of the name change in a press release reviewed and edited by Mr. Leo (p. 130-31), multiple emails were transmitted between Dean Butler to Mr. Leo, including one where the anonymous donor’s email was redacted, about media stories on the controversial name change (pp. 432-34, 452-58, 460-62, 495- 99). On 5/6/16, Dean Butler sent a summary of media stories to Mr. Leo along with Reginald J. Brown of the WilmerHale law firm (formally, Wilmer Cutler Hale Pickering & Dorr LLP) (p. 496). Mr. Brown, who is a former member of George Mason University’s Board of Visitors and a prominent member and funder of the Federalist Society, acknowledges that he helped “with the effort to get the law school name changed” while denying that he or his law firm represented the BH Fund or the anonymous donor.

In accordance with the Federalist Society’s new oversight rights, George Mason University gave the Federalist Society a leading role in at the dedication of the Antonin Scalia Law School which took place on October 6, 2016 with six Supreme Court justices attending. Following the dedication, a formal luncheon hosted and paid for by the Federalist Society was given for a select group of attendees (p. 662). At that luncheon, which was never disclosed to the students or the public, Mr. Leo gave toasts on behalf of “the donor” and told the attendees, including Supreme Court justices, that the Federalist Society, not George Mason, was footing the bill for their expensive lobster luncheon (p. 662). That same evening, Mr. Leo served as co-chair of the “Tribute to Justice Antonin Scalia” fundraising dinner held at Union Station where former Vice President Dick Cheney was a featured speaker and “Honorary Committee” member (p. 690) and Supreme Court justices were again in attendance. During the dinner, GMU President Angel Cabrera thanked Mr. Leo personally for making the $20 million donation possible. Seating charts show that Mr. Leo and his wife sat at Justice Thomas’ table, and that there was also a table for the “Anonymous Donor,” where Jonathan Bunch sat, along with Trevor McFadden, who was confirmed in October 2017 as U.S. District Court Judge in the District of Columbia (p. 672). Videotape of the dinner shows former Vice President Dick Cheney bragging during a panel discussion that Justice Scalia never tried to persuade him “to change his views,” instead, “it would be the other way around.”