Clarence Thomas Shows Why Supreme Court Justices Cannot Be Above the Law

The more we learn about Supreme Court Justice Clarence Thomas’ financial disclosures, the more it becomes plain that the Justice Department must open an investigation.

For full disclosure, I interviewed with Thomas after law school for a judicial clerkship in the time when his nomination to the D.C. Circuit Court of Appeals was still pending confirmation, and then again when he was nominated to the Supreme Court. He turned me down both times. Still, I remember him as charismatic and personable with a compelling personal story.

His record since then has not been kind to my brief first impression of him.

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From the amendments to his financial disclosures in 2011—going back 13 years—in which he had failed to include his wife Ginni Thomas’ work for the Heritage Foundation (totaling $690,000), to the luxury vacations at private resorts and super-yachts, and the private jet rides paid for by billionaire conservative activist Harlan Crow (who also purchased real estate from Thomas)—the evidence of Thomas’ financial disclosure failings is overwhelming.

The most recent revelation, that for the last two decades his family received rental income in the hundreds of thousands of dollars from a business that has been defunct since 2006 only adds fuel to the fire.

The justice has many explanations for these facts. He says he originally consulted colleagues on the Supreme Court, who advised him he did not have to disclose the benefits paid for by Crow. Thomas also claims he misunderstood filing requirements about his wife’s income, and believed that the real estate did not have to be reported because he made no profit on it.

The common theme is that Thomas is forthcoming only after public interest groups like Common Cause and journalists like those at ProPublica discover his omissions.

Not only is that a bad look for him, it amplifies the decibel level of worry over the high court’s lack of accountability to the level of a scream.

Calls for Chief Justice John Roberts to conduct an investigation into Thomas are completely reasonable, but also completely unrealistic given the fact that Roberts’ “investigation” of the Dobbs decision leak seemed completely inept. And as Rep. Alexandria Ocasio-Cortez (D-NY) told CNN’s Dana Bash, the justices themselves are implicated in the advice Thomas supposedly sought from unnamed colleagues.

AOC has called for the House of Representatives to open an impeachment investigation, which would be far more effective than an investigation run by Chief Justice Roberts and the SCOTUS Marshal’s Office, but impeachment investigations in a Republican-controlled House face nearly insurmountable obstacles in even getting started—much less getting anything done.

The sole viable investigation option is one conducted by DOJ. Only questioning conducted by experienced public corruption investigators—either under penalty of perjury before a grand jury or under the threat of false statements violations—can result in a thorough investigation deserving of public confidence in the outcome.

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Skilled investigation is particularly needed because Thomas’ intent will be a crucial issue, as his most likely defenses all involve careless error, or a failure by a Supreme Court justice to understand the rules of disclosure, or a belief that his acceptance of trips and financial benefits fell within certain exemptions to the ethics disclosure requirements.

Discerning intent will require precise questioning, as well as a review of the years of pattern evidence in Thomas’ prior disclosures and amendments.

The investigation does not have to be a criminal one, but can be a civil one as well. As noted in a complaint filed by the ethics watchdog group Citizens for Responsibility and Ethics in Washington (CREW), a DOJ investigation could look at both civil and criminal ramifications of Thomas’ behavior as violations of the Ethics in Government Act. Civil violations under the Act could result in up to $50,000 for each violation in penalties. Criminal penalties could result in up to five years of imprisonment, as well as fines.

It is theoretically possible that any false statements made on the disclosures themselves could also give rise to separate false statement charges. Perhaps the best solution would be to open simultaneous parallel civil and criminal investigations.

Conservatives have decried any talk of investigating Justice Thomas as baseless political attacks. That outcry will ratchet up considerably if DOJ opens an investigation. Attorney General Merrick Garland—based upon his previous cautious behavior—may be particularly hesitant to insert DOJ into another politically charged issue, but he really has little choice given the near-daily revelations that raise new questions about the accuracy of Thomas’ financial disclosures.

SCOTUS has only itself to blame for this situation. For years it has resisted adopting the simple first step of accountability for the justices, which would have been a code of judicial ethics.

In his 2011 defense of this choice, Chief Justice Roberts asserted the high court did not need such a code of ethics, as the justices could consult a wide range of ethical guidance including advice “from their colleagues”—which apparently is exactly what Justice Thomas claims to have relied upon.

It apparently did not occur to Roberts that such reliance potentially makes whichever justices offer advice to their colleagues potential witnesses in an investigation.

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Perhaps, even more indicative of SCOTUS’ cavalier attitude towards self-policing is Roberts’ suggestion that Congress might not even be able to constitutionally legislate reporting requirements on SCOTUS. He also said any attempt to create a mandatory recusal law “has never been tested,” suggesting SCOTUS might determine that any such law to be unconstitutional.

The criminal justice system is a blunt instrument poorly suited to being an instrument of reform. It is best suited to very blatant instances of potential wrongdoing.

There might have been action that Congress and SCOTUS could have taken years ago that would have prevented the current situation with Justice Thomas. But that time is long past.

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