Brett Murphy, ProPublica
April 12, 2023
U.S. Supreme Court Justice Clarence Thomas. (Photo by Preston Keres/USDA)
ProPublica is a Pulitzer Prize-winning investigative newsroom.
A Washington ethics watchdog is calling for the Department of Justice to investigate Supreme Court Justice Clarence Thomas for failing to disclose luxury trips he received from a billionaire GOP megadonor.
“This high-profile ethics matter has historic implications far beyond one Supreme Court justice,” attorneys for the nonpartisan Campaign Legal Center wrote in a detailed letter on Tuesday to the Judicial Conference, the principal policymaking body for federal courts. The Judicial Conference could trigger an investigation by referring the case to the Justice Department.
The financial disclosure law that covers justices and other federal officials states that “knowingly and willfully” failing to make required disclosures can result in fines. If someone intentionally falsifies their disclosure reports, they can face criminal penalties — a warning printed below the signature line of the reports themselves. But such prosecutions are rare.
ProPublica’s investigation last week revealed that Thomas has taken international cruises on conservative donor Harlan Crow’s superyacht, flown on Crow’s private jet and regularly vacationed at Crow’s private resort in the Adirondacks.
If the Judicial Conference were to refer the case to the Justice Department, it could lead to a remarkable historical moment. One of the few instances of a federal investigation into a sitting Supreme Court justice occurred in 1969, when Justice Department officials signaled an inquiry into outside payments that Justice Abe Fortas had been accepting. Fortas eventually resigned.
Lawyers for the Campaign Legal Center, which was founded by a former Republican chairman of the Federal Election Commission and pushes for tighter ethics enforcement in Washington, wrote that there’s ample “reasonable cause to believe that” Thomas knew the trips had to be disclosed.
“If the Judicial Conference fails to publicly address the substantial evidence of blatant violations of a disclosure law that other federal judges understand and regularly follow,” the attorneys wrote, “it creates an exception for Justice Thomas that swallows the rule.”
The Judicial Conference and Thomas did not immediately respond to requests for comment. The Justice Department declined to comment.
The letter is the latest in what have been days of mounting pressure to address the revelations. Last week, Democratic lawmakers called on Chief Justice John Roberts to investigate. This Monday, Democrats on the Senate Judiciary Committee announced plans to hold a hearing “regarding the need to restore confidence in the Supreme Court’s ethical standards.” They also announced an effort to reform ethics rules for federal judges.
In response to our story last week, Thomas issued a statement acknowledging the “family trips,” which he said he was told that he didn’t need to report.
“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas wrote. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”
Seven experts consulted by ProPublica, including former ethics lawyers for Congress and the White House, said the law clearly requires the disclosure of gifts of transportation, such as private jet flights. If Thomas is arguing otherwise, the experts said, he is incorrect. Among the experts was a top official at the Campaign Legal Center.
Crow acknowledged that he’d extended “hospitality” to the Thomases “over the years.” He said that Thomas never asked for any of it and it was “no different from the hospitality we have extended to our many other dear friends.”
Attorneys with the center said that the federal Ethics in Government Act and judiciary regulations have always required the disclosure of free travel — even before the regulations were updated last month. They argued that Thomas himself implicitly acknowledged as much when he disclosed similar flights in the late 1990s, including one on Crow’s jet.
The attorneys pushed for the Judicial Conference to make good on its recent promises to “ensure timely action is taken on credible allegations of misconduct” and refer Thomas’ case to the Justice Department before the next judicial ethics disclosure deadline in May.
A Matter of Personal Hospitality: Buying the US Supreme Court
Photograph Source: Ronald Reagan Presidential Library – Public Domain
What is going to be done with Clarence Thomas, that darling reactionary among reactionaries on the US Supreme Court? Evidently, the justice seems to assume that being bribed, paid off or bought by a billionaire over the course of 20 years is a perfectly appropriate practice, reconcilable with the role of his office in handing down judgments affecting the lives of millions.
A ProPublica investigation has found that the Supreme Court justice received gifts from the billionaire real estate magnate and Republican donor Harlan Crow for two decades. It opens with a description of one of those gifts: flying on a Bombardier Global 5000 jet to Indonesia, wife Virginia “Ginni” Thomas in tow; nine days of island hopping across the archipelago on a fully staffed superyacht – all for the splendid value of $500,000.
As the investigation points out, the failure to disclose such travel and resort stints would seem to violate the post-Watergate law requiring justices, judges, members of Congress and federal officials to disclose most gifts. For Crow, as outlined in a statement, this was all a case of extended “hospitality”, something which Thomas had never sought. It was “no different from the hospitality we have extended to our many other dear friends.” That’s influence for you.
The link between Crow and Thomas is hardly incidental or a case of disinterested association. Crow has been a keen figure in advancing hefty right-wing causes. He is a director at the American Enterprise Institute and serves as a board member at the George W. Bush Foundation, the Supreme Court Historical Society and the Hoover Institution. His hospitality to Thomas was also reported by The New York Times in 2011, while Politico, that same year, unveiled the link between a half-million dollar donation to a Tea Party group founded by Ginni.
In such instances, it is becoming of justices to keep their mouths shut and sealed. But Thomas, showing a considerable lack of judgment – surely something of a drawback in his line of work – decided to issue a statement thickening the links, implicating his fellow judges, and removing all doubt. “Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable.”
This lamentable state of affairs does more than suggest that something is rotten – and rotting – on the bench. Thomas certainly sees no trouble with it. He claims to have followed the disclosure requirements to the letter, as they had stood prior to changes announced in March.
Stephen Gillers of New York University School of Law, who has an interest in judicial ethics, makes it clear that the new disclosure rules would cover such things as jet travel and resort stays within the context of personal hospitality. What was striking for him was the justice’s dismissive attitude. “Thomas has made no effort to defend his conduct except to say he was misled by those he consulted.”
Nancy Gertner, a former federal judge and appointee of President Bill Clinton, found it “incomprehensible … that someone would do this.” During the course of her tenure on the bench, she was fastidious in ensuring that professional appearances were kept. “It was a question of not wanting to use the office for anything other than what it was intended.”
Under the absentee watch of Supreme Court Chief Justice John Roberts, the court bench has come to emit a rank smell that tends to follow in corruption’s wake. Take the example of Justice Samuel Alito, who also showed a spectacular sense of poor judgment in revealing to dinner guests at his own home the outcome of the 2014 case Burwell v Hobby Lobby months before it was officially published. While Alito denies this assertion, the correspondence from the source of this revelation – former anti-abortion activist Robert Schenck – suggests otherwise.
Alito’s loose tongue may well have been busy in another case. Given that he was the author of the 5-4 Hobby Lobbydecision, there is a suggestion that he might have proved a rather leaky vessel in the Dobbs decision which overturned Roe v Wade.
The Schenck revelations are certainly instructive in showing influence over the court in a very particular way. It would certainly change the narrative that points the finger at a bleeding-heart liberal justice on the bench supposedly keen to threaten the court with not changing a precedent that had stood for decades.
As Elie Mystal writes, “If you are part of the conservative-industrial complex, you don’t have to convince these people of anything; they’re already on your side. All you have to do is convince the conservative justices to be the worst versions of themselves.”
New York Representative Alexandria Ocasio-Cortez has suggested that articles of impeachment be drawn up for Thomas. “I think this is an emergency. This is a crisis.” If so, this has been a crisis that has been smouldering for years. Impeaching the Crow-pampered justice will only be the mildest of biopsies for the highest juristocracy in the land. And just to make matters that more interesting, AOC is herself being investigated by the House Ethics Committee for receiving “impermissible gifts” from the Met Gala in 2021. Congress and the Supreme Court – easily bought and easily influenced.
