Editorial: Holding court — Senators’ push to investigate Justice Clarence Thomas is entirely appropriate

In sending a letter to Attorney General Merrick Garland asking for the appointment of a special counsel to investigate Justice Clarence Thomas’ many undisclosed gifts as possible criminal ethics and tax violations, Sens. Sheldon Whitehouse and Ron Wyden are standing by their duty to protect the legitimacy of the federal government and the balance between the branches.

As much as Thomas and his fellow out-of-control justices try to reinterpret the Constitution, one thing they can’t reason away is that the document constrains all branches and attempts to make them somewhat coequal. It does not give the judiciary the ability to sit above the others, untouchable.

The prospect of a criminal investigation is very serious, but so is the conduct alleged. It seems like every week there are revelations that Thomas took another gift from his wealthy benefactors, in particular the hyper-conservative and very politically active donor Harlan Crow.

The senators’ detailed 16-page letter included yet more hidden gifts, including a yacht trip to Russia and a ride on a private helicopter. The justice can hardly continue to claim ignorance of the rules or expectations when he’s been pushed over and over to fully disclose what he’s received and when, yet new information just keeps coming out.

Thomas can rule the way see fit on cases (including his horrible view that guns can never be regulated which is at odds with his eight colleagues) but he must follow the laws and rules related to accepting free stuff. Justice Abe Fortas, who was nominated to be chief justice in 1968, instead resigned when gifts he received were disclosed. Fortas had in fact returned the gifts three years before and their value was far less than what Crow has bestowed on Thomas.

It’s worth remembering that we’re not talking about a meal here or there. Thomas is now known to have accepted at least some $2.4 million in gifts, almost all completely undisclosed until reporters started digging around. In addition to the yacht trip and helicopter ride, the senators’ letter details nearly three dozen other likely undisclosed gifts provided by Crow and other donors.

A special counsel could examine and act on the totality of the evidence; the appointment of one does not in itself mean that an investigation target will be prosecuted, of course. Garland appointed one special counsel who investigated, prosecuted and convicted First Son Hunter Biden. Another Garland special counsel examined President Biden and found no basis to move forward with a prosecution. If Thomas truly has committed no wrongdoing, then he can expect the same.

If the justice has committed criminal violations, that’s something the American public deserves to know. And, though filed a bit prematurely by Rep. Alexandria Ocasio-Cortez, it would give some teeth to the articles of impeachment against Thomas (and, a little more tenuously, Sam Alito). Judges are the federal officials historically most likely to be impeached, and this conduct plus failure to recuse — including in cases involving the Jan. 6 insurrection, in which Thomas’ wife Ginny had a hand — are definitely worth considering that option. But let an impartial investigation establish all the facts first.

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