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Lawmakers seek special prosecutor for criminal investigation into Clarence Thomas case

Lawmakers seek special prosecutor for criminal investigation into Clarence Thomas case

Two Democratic US Senators announced Tuesday that they are seeking a criminal investigation into Superior Court Judge Clarence Thomas over travel gifts, a loan for a mobile home and other benefits he received from wealthy patrons.

Senators Sheldon Whitehouse (D-I.) and Ron Wyden (D-Ore.) said they sent a letter to Attorney General Merrick Garland last week urging him to appoint a special counsel to investigate whether Thomas violated ethics, false statements and tax laws.

The measure marks a significant intensification of efforts by Democratic senators, Ethics controversies have surrounded Thomas and the court in recent years. Whitehouse’s aides said it was likely the first time anyone had asked a special counsel to investigate a Supreme Court justice. Whitehouse sits on the Senate Judiciary Committee, while Wyden chairs the Senate Finance Committee.

Jeremy Fogel, a former federal judge and executive director of the Berkeley Judicial Institute, said the Justice Department has the legal authority to appoint a special counsel to investigate Thomas, but whether it would do so is another question. “It would inevitably be seen as political retaliation for rulings that the judges don’t like,” he said. “I just don’t know how to get out of that situation.”

The Justice Department declined to comment on the request.

Special counsels are generally appointed when the attorney general wants to assure the public that a sensitive investigation is being conducted fairly and free of political considerations. Garland has appointed three special counsels during his tenure to oversee investigations into former President Donald Trump, President Biden and the president’s son, Hunter Biden.

“We do not make this request lightly,” Whitehouse and Wyden said in a statement. “The evidence gathered to date clearly indicates that Judge Thomas has committed numerous willful violations of federal ethics and false statements laws, and there are significant doubts about whether he and his wealthy benefactors have complied with their federal tax obligations.”

Thomas and his attorney, Elliot S. Berke, did not immediately respond to requests for comment, but Berke had previously stated that Thomas had attempted to comply with then-current disclosure requirements regarding financial gifts and travel.

“Judge Thomas has always strived for complete transparency and compliance with the law, including with respect to what personal travel must be reported,” Berke said in a statement last year, calling any failure to disclose travel “completely unintentional.”

Whitehouse and Wyden said they wanted to hire a special counsel to investigate a $267,000 loan that Thomas used to purchase a luxury coach in 1999., and added that they had not received adequate answers from Thomas about how he handled the matter. A Senate Finance Committee investigation concluded that a significant portion of the loan was forgiven by Thomas’ friend and businessman Anthony Welters in 2008. The committee found that Thomas had failed to report the loan on his financial returns, raising questions about whether he had reported it as income on his tax returns as required by law.

Thomas has not commented publicly on the loan, but Welters told the Washington Post last year: he believed that Thomas had “paid back the loan.”

The senators also want the special counsel to investigate several instances of air travel, yacht trips, home renovations, college tuition, tickets to luxury sporting events, lodging and other gifts that Thomas did not disclose in his annual financial filings. The gifts were reported in a series of articles by ProPublica last year. Many of the items were paid for by Harlan Crow, the Texas billionaire, friend of Thomas and major Republican donor.

In addition, the senators want the special counsel to investigate $25,000 in consulting fees that conservative justice activist Leonard Leo paid to Thomas’ wife, Virginia “Ginni” Thomas. The payment was first disclosed by the Washington Post last May. Some ethics experts said it raised questions about whether Thomas should have recuse himself from certain cases. Neither Clarence nor Ginni Thomas responded to requests for comment on the payment at that time.

Failure to disclose the gifts and payments may have violated a federal law that requires government officials to disclose gifts, loans and other benefits, Whitehouse and Wyden said. They also want to know whether Thomas’s patrons paid gift taxes and whether Leo’s payment to Ginni Thomas was part of a coordinated gift scheme or whether additional disclosures were required by the judge.

Last month, the White House and Representative Hank Johnson (D-Georgia) asked officials of the U.S. Judicial Conference, which oversees judicial ethics issues, to explain how they are handling the revelations about Thomas. They have not yet received a response. The lawmakers had previously asked the conference to refer Thomas to the Justice Department. for possible ethical violations.

The Senate Judiciary Committee revealed last month that Thomas took three flights paid for by Crow between 2017 and 2021 that he did not disclose. Berke said Thomas was not required to disclose the trip because it occurred before the Supreme Court clarified its own ethics rules to require free trips to be reported as gifts. Thomas reported three trips on Crow’s jet after the policy change in 2022.

Justice also revised its 2019 financial disclosures last month to include accommodation and other expenses paid by Crow during Traveling to Bali and a club in California.