Sat. Jul 13th, 2024

Opinion | Senators finally call for special counsel to investigate Clarence Thomas

By meerna Jul11,2024
Opinion | Senators finally call for special counsel to investigate Clarence Thomas

Outraged by the judicial blocking, blatant judicial ethics violations, inaccurate legal filings and blatant money grabs by right-wing billionaires who have business before the Supreme Court, Sens. Sheldon Whitehouse (D-Ill.) and Ron Wyden (D-Ore.) sent a letter to Attorney General Merrick Garland this week demanding the appointment of a special counsel “to investigate possible federal ethics and tax violations by Supreme Court Justice Clarence Thomas.” Well, it’s high time someone took Thomas’s inexcusable behavior seriously. (Meanwhile, Democratic Rep. Alexandria Ocasio-Cortez’s introduction of articles of impeachment in the GOP-controlled House on Wednesday is a showy gesture, but it has no chance of success.)

The letter details “repeated and deliberate omissions of donations and income from Judge Thomas’ financial disclosure reports required by the Ethics in Government Act.” The senators emphasize that the investigations have been brought against other government officials on much less serious charges.

This is not a complaint about the lack of exemption, however objectionable it might have been for Thomas to sit on cases involving the insurrection, in which his wife played a limited role, or on bribery; this court makes such accusations virtually impossible. Instead, the letter addresses the underlying allegations of false affidavits and tax violations.

The list of problems is staggering. For example: the forgiveness of principal on a $267,000 loan that was never reported as income. (“Documents obtained by the Senate Finance Committee indicate that none of the principal on the loan was ever repaid, and Judge Thomas made only interest payments on the loan before all loan payments ceased. Forgiven or discharged debt is taxable income, and the Ethics in Government Act requires judges to disclose any ‘income from debt forgiveness.’”) It was never included in Thomas’ financial disclosure reports. Thomas declined to say whether he accounted for the loan forgiveness on his tax return.

Then there are the gifts—lots of gifts. The senators cite “undisclosed gifts from other wealthy donors…including a private jet trip from Paul Anthony Novelly; a private jet trip and country club membership from the late Wayne Huizenga; and a private jet trip, luxury sports tickets, and ranch accommodations from David Sokol.” The senator includes an appendix detailing these lavish payments. The senators write: “Judge Thomas has claimed that some of the omissions were ‘unintentional’ and has amended some prior reports accordingly. However, Judge Thomas has not disclosed all of the disclosed gifts, and there may be many more.” Thus, they charge: “His long history of omissions demonstrates a pattern of willfulness that merits scrutiny under the Ethics in Government Act.”

Then there are the gifts specifically from Leonard Leo — a right-wing legal impresario and former vice president of the Federalist Society who helped elect Supreme Court justices and engineered lawsuits to promote his dark money agenda, according to Whitehouse. The senators explain:

Last year, the Washington Post reported that Leo had arranged for at least $25,000 to be paid to a consulting firm run by Judge Thomas’s wife, with Leo specifying that documents related to the payments should include “no mention” of Ms. Thomas. The hidden nature of the payments raises further questions about how many such payments were arranged, whether legitimate services were actually provided, and whether such payments required additional reporting by Judge Thomas. We have not yet been able to adequately investigate the extent to which any or all of these undisclosed gifts were part of a coordinated gift scheme designed to reward the justices who received them.

In short, the senators raise allegations of willful misrepresentation on government disclosure forms and income and gift tax violations. At this point, they are just allegations. But there are certainly grounds for further investigation, the senators say. After detailing other investigations into less egregious conduct, the senators argue that only a special counsel can properly conduct the investigation. (“Because no plaintiff appears before the Supreme Court more often than the United States government, represented by the Department of Justice, the Department may understandably hesitate to offend a member of this Court.”)

The senators aren’t alone in making such arguments. In April 2023, the anti-corruption group Citizens for Responsibility and Ethics in Washington (CREW) sent a letter to Chief Justice John G. Roberts Jr. and Garland after Pro Publica broke the news of lavish gifts Thomas received from fellow billionaire Harlan Crow.

In that letter, CREW and several ethics experts wrote: “If true, Judge Thomas’s acceptance and failure to report these gifts and sales in his annual mandatory financial disclosure statements not only undermines confidence in his ability to impartially and honestly perform his duties as a member of the Court, but also threatens to undermine public confidence in the Supreme Court as an institution.” CREW President Noah Bookbinder told me that CREW never received a response.

One of the ethics experts who signed the letter, Richard Painter, told me, “The attorney general may or may not decide to appoint a special counsel. I think that’s justified in this case.” If Garland doesn’t appoint a special counsel, Or If the Supreme Court justices were to undertake any investigation, as the president does under the new system of government devised by this court, they would conclude that they operate in a world of criminal immunity, safe in the knowledge that a partisan Senate would never remove them from office.

“Judge Thomas’s serious and frequent misconduct, including his persistent failure to report generous donations from a wealthy benefactor who had strong interests in the work of the Supreme Court and his repeated failure to recuse himself from cases in which he had a clear conflict of interest, requires thorough investigation and real accountability,” Bookbinder tells me.

The Thomas scandal is the result of the refusal to adopt a mandatory code of ethics for the Supreme Court and provide lifetime protection for judges. This leaves the rule of law dependent on the good manners of judges themselves to remain ethical. This has obviously proven insufficient.

And so Whitehouse and Wyden, left with no other choice, are asking the Justice Department to do its job. “This is a fundamental request of the rule of law,” constitutional scholar Dennis Aftergut tells me. “While many don’t expect Garland to take it up before the election, if democracy survives until November, the senators have written the heart of what needs to happen if we want to rid the courts of corruption.”

Unfortunately, if criminal and former President Donald Trump is elected, you can bet there will be no investigation. Garland must act quickly to ensure that — once again — justice delayed does not become justice denied.

By meerna

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