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

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

Fed up with the judge’s obstructionism, blatant violations of judicial ethics, vague legal motions and blatant greed by right-wing billionaires doing business before the Supreme Court, Senators Sheldon Whitehouse (D-I.) 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 violations of federal ethics and tax laws by Associate Justice Clarence Thomas.” Well, it’s time someone took Thomas’ inexcusable behavior seriously. (The subsequent introduction of articles of impeachment by Democratic Rep. Alexandria Ocasio-Cortez in the Republican-controlled House on Wednesday is a showy gesture, but a failure.)

The letter describes “repeated and intentional omissions of gifts and income from Judge Thomas’ financial reports as required by the Ethics in Government Act.” And as the Senators point out, were brought against other government officials on far less serious charges.

This is not a complaint of bias—reprehensible as it may be that Thomas is trying cases related to the insurrection, in which his wife played a limited role, or bribery cases; thanks to this court, such prosecutions are virtually impossible. Instead, the letter addresses mundane allegations of perjury and tax violations.

The list of issues is staggering. For example: Forgiving the principal of a $267,000 loan that was never reported as income. (“Documents obtained by the Senate Finance Committee show that no principal was ever paid on the loan and that Judge Thomas made only interest payments on the loan before all payments on the loan stopped. Forgiven or discharged debt is taxable income, and the Ethics in Government Act requires judges to disclose any ‘income from debt forgiveness.'”) This was never listed on Thomas’s financial reports. Thomas refused to say whether he included the loan forgiveness on his income taxes.

And then there are the gifts – lots of gifts. The senators cite “undisclosed gifts from other wealthy donors … including private jet trips from Paul Anthony Novelly, private jet trips and country club memberships from the late Wayne Huizenga, and private jet trips, luxury sports tickets and ranch accommodations from David Sokol.” The senator includes an appendix detailing these generous gifts. The senators write, “Judge Thomas has claimed that some omissions were ‘inadvertent,’ and he has amended some previous reports accordingly. However, Judge Thomas has not disclosed all of the gifts that were revealed, and there may well be more.” Therefore, they charge, “His long history of omissions indicates a pattern of willful misconduct that merits investigation under the Ethics in Government Act.”

Then there are the gifts specifically from Leonard Leo – the right-wing legal impresario and former vice president of the Federalist Society who Whitehouse says helped select Supreme Court justices and bring cases to the court to advance his agenda for dark money groups. The senators explain:

Last year, the Washington Post reported that Leo had ordered payments of at least $25,000 to a consulting firm run by Judge Thomas’ wife. Leo stated that documents related to the payments “should not mention Mrs. Thomas at all.” The clandestine nature of the payments raises further questions about how many of these payments were orchestrated, 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 some or all of these undisclosed gifts were part of a coordinated gift scheme to reward the favored judges.

In summary, the senators make allegations of intentional false statements on government disclosure forms and income and gift tax violations. At this point, these are just allegations. But there is certainly a basis for further investigation, the senators argue. After detailing other investigations into less egregious conduct, the senators argue that only a special counsel could properly investigate. (“Because no litigant appears before the Supreme Court more frequently than the U.S. government, represented by the Department of Justice, the Department might understandably be reluctant to insult a member of that Court.”)

The senators are not the only ones who have made these 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 to Garland after Pro Publica broke the news that Thomas had received generous gifts from another billionaire, Harlan Crow.

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

One of the ethics experts who signed that letter, Richard Painter, told me, “The Attorney General may or may not choose to appoint a special counsel. I believe it is justified in this case.” If Garland does not appoint a special counsel or If the Supreme Court justices even open an investigation, they will conclude, as will the President in the new model of government that Court has devised, that they are operating in a world of criminal immunity, confident that a partisan Senate will never remove them from office.

“Justice Thomas’s serious and frequent misconduct, including consistent failure to report generous gifts from a wealthy benefactor with a strong interest in the Supreme Court’s work and repeated failure to recuse himself from cases where he had a clear conflict of interest, demands thorough investigation and real accountability,” Bookbinder tells me.

The Thomas scandal is the result of the refusal to adopt a binding code of ethics for the Supreme Court and to impose life sentences on its judges. This means that the rule of law is dependent on the goodness of the judges in order to remain ethical. This has obviously proven to be insufficient.

And so, left with no alternative, Whitehouse and Wyden are calling on the Justice Department to do its job. “This call is fundamental to the rule of law,” constitutional lawyer Dennis Aftergut tells me. “Many will not expect Garland to take it up before the election, but if democracy survives November, the senators have laid out the baseline of what must happen if we are to remove corruption from the court.”

Unfortunately, if former felon Donald Trump is elected, it is safe to assume that no investigation will be launched. Therefore, it is Garland’s duty to act quickly to prevent justice delayed from becoming justice denied – again.