Upping the Ante on Thomas

Justice Clarence Thomas is about to go through some things.

Justice Clarence Thomas. Photo: J. Scott Applewhite / AP

We’ve all felt the frustration. A series of bombshell reports revealed last year that Justice Clarence Thomas has been bought and paid for many times over the last two decades. He accepted gifts from his billionaire friends who, directly or indirectly, had business before the Court. He flouted every ethical duty and law requiring him to report these gifts, and he apparently even failed to report significant income he received in the form of a large forgiven loan.

The Senate has been stonewalled in its efforts to investigate Thomas, not only by Republican senators closing ranks to protect him, but also by Thomas’s billionaire allies such as Leonard Leo, who has so far refused to cooperate with investigators. Leo likely knows he can run out the clock by forcing Democrats to file suit in federal civil court, where his judicial allies are well placed to protect him in any event.

There has been no opportunity to impeach Thomas, of course, with the House currently in Republican hands. And pressure upon Chief Justice Roberts to address collapsing confidence in the Supreme Court has resulted only in a set of unenforceable ethical guidelines and a refusal by the Chief Justice to even meet with Democratic Senate leaders.

That’s why yesterday’s escalation against Thomas by two powerful senators is both noteworthy and historic.

Early last week, Senators Sheldon Whitehouse (D-RI) and Ron Wyden (D-OR) sent a letter to Attorney General Merrick Garland requesting a special counsel to investigate possible violations of law by Justice Thomas. We only learned of the letter on Tuesday of this week after the senators went public with their request. 

The upshot of this request is that Thomas is now on notice. Not only his lack of ethics as a justice but his actual criminality is on the table and could receive a much closer look. It opens a front against the Supreme Court’s conservative majority that did not exist before, and the stakes are now much higher.

In today’s piece, as a refresher I’ll walk through some of the many ways in which Justice Thomas has apparently violated federal ethical and tax laws by accepting gifts and failing to disclose them. I’ll then focus on what the two senators are asking for and why some billionaires might be a bit antsy. Finally, I’ll discuss the political ramifications of the special counsel request and Attorney General Garland’s response. 

A justice on the take

It’s been over 15 months since ProPublica dropped the first bombshell story of Justice Clarence Thomas’s deep corruption: luxury vacations, super yacht cruises, private jets and exclusive resorts, all paid for by his pal with the Dickensian, villainous name of Harlan Crow. 

Contrary to federal disclosure laws, Thomas reported none of this.

ProPublica followed up shortly thereafter with damning accounts of how Crow also held the pursestrings of Thomas’s extended family. Crow’s company, it turns out, had purchased the home of Thomas’s mother, and she still resides there rent free. Crow ordered and paid for expensive improvements on the house—a carport, roof repair, new fence and gate. And he assumed the property’s tax bill, which the Thomases used to have to pay.

Thomas disclosed none of this.

Then another bombshell. ProPublica reported in August of last year that Thomas had more than one sugar daddy. Four other wealthy men, whom Thomas met after becoming a Supreme Court justice, had showered lavish gifts upon him for years, including:

• 38+ destination vacations

• 26 private jet flights

• 12 VIP passes to pro and college sporting events

• 2 stays at luxury resorts in Florida and Jamaica

• 1 standing invite to an uber-exclusive golf club

And that’s just what could be uncovered from public records and their investigation. As I wrote at the time,

According to ethics experts who spoke to ProPublica, for items like costly tickets to sporting events, there is simply no way to characterize that other than as a gift with a clear dollar value, often in the thousands or tens of thousands of dollars. The same goes for luxury vacations that took place at hotel resorts rather than at people’s homes. 

Then we learned that Thomas’s corruption went even further than fancy, millionaire lifestyle gifts or perks for his family. According to a report by the New York Times, which was later confirmed through a Senate investigation, a wealthy friend of Thomas, who had loaned him the money to buy his dream RV, forgave the quarter million dollar plus loan on it. As those familiar with tax law know, a forgiven loan is taxable income unless somehow exempted, but Thomas apparently never reported it either. 

Months of efforts to get the Justice and his billionaire friends to cooperate with Senate investigators resulted only in a revised financial declaration by Thomas, which still appears to omit several gifts. Many other things remain unexplained, including any credible reason for failing to disclose the gifts and any explanation of the unreported taxable event of the loan forgiveness on his RV.

Lowering the boom

Senators Whitehouse and Wyden know they are playing for keeps. The appointment of a special counsel to investigate a sitting Supreme Court Justice—especially one as openly partisan and power hungry as Justice Thomas—has never occurred before. Any calls for it are tantamount to a declaration of political war by one part of the government (Congress) against the other (the Judiciary).

On the other hand, it’s not as if the appointment of special counsels is somehow unheard of in our politics. As the Washington Post noted,

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

There is little doubt that an investigation of a Supreme Court Justice who bats regularly for the far right would be seen as deeply political by the Fox Network and Breitbart. And while the definitional independence of a special counsel is supposed to blunt that criticism, the recent record of Republican special prosecutors, specifically Robert Hur and David Weiss, have made clear that politics can readily infect the process and decision making.

Still, we’ve now reached a point where Democrats feel they have no other option but to request an independent prosecutor.

“We do not make this request lightly,” Whitehouse and Wyden said in a statement. “The evidence assembled thus far plainly suggests that Justice Thomas has committed numerous willful violations of federal ethics and false-statement laws and raises significant questions about whether he and his wealthy benefactors have complied with their federal tax obligations.”

The possible violation of tax laws gets around the question that the Supreme Court opened up in one of its recent opinions, which limits the ability of federal law enforcement to charge local and state officials with corruption for accepting gifts after the fact. Even if a corrupt right wing of the Court could find a way to let its brethren off the hook for accepting gifts that sure look like bribes, it will be harder for Thomas to shake the possible violations of tax laws.

Moreover, in their letter to Attorney General Garland, the senators not only made this more explicit, but threw down the gauntlet to both Thomas and his corrupt enablers: 

“Supreme Court justices are properly expected to obey laws designed to prevent conflicts of interest and the appearance of impropriety and to comply with the federal tax code. We therefore request that you appoint a Special Counsel authorized to investigate potential criminal violations by Justice Thomas under the disclosure, false statement, and tax laws; pursue leads of related criminal violations by donors, lenders, and intermediate corporate entities; and determine whether any such loans and gifts were provided pursuant to a coordinated enterprise or plan.”

Read the last lines more closely. The senators want a special counsel to bring the whole web of shady donors and lenders to light before the public. If federal disclosure and tax laws were violated within that circle, then charge them, they appear to argue. And perhaps more ominously for Thomas’s billionaire buddies, if the loans and gifts were part of a “coordinated enterprise or plan,” charge them for that, too. 

If you’re a longtime reader here, you likely read that the way I did: The senators are telling the Attorney General that there may be a possible federal RICO violation, meaning certain unlawful acts committed by a criminal enterprise.

Political quandary

The demand by Sens. Whitehouse and Wyden places Attorney General Garland in a tricky spot politically.

On the one hand, as the senators note, “No government official should be above the law.” Supreme Court justices, like anyone else, are expected to obey basic conflict of interest and federal tax laws. And it’s beyond dispute that Thomas has accepted millions of dollars worth of trips and gifts without disclosing them. He also failed to report when debts, like the $267,000 loan on his RV, were wiped clean. Those all look like crimes that should be investigated.

On the other hand, the Justice Department moving against Thomas now could read to the right as political vendetta, especially after Thomas’s recent concurring opinion in Trump v. U.S. questioning the very constitutionality of Special Counsel Jack Smith’s appointment. (Cynically viewed, perhaps Thomas could sense that a request for a special counsel in his case was imminent, and like a squid fleeing for its life, he wanted to squirt some legal ink in the path of his pursuers.)

Garland isn’t known for making quick decisions over momentous cases. But he undoubtedly will take the request quite seriously and carefully weigh whether the facts, evidence and political sensitivity of the matter warrant a special counsel. The senators had the sense to wait till the end of the Supreme Court term to make their request, and the summer, when the Court is in recess, would be a favorable time to conduct an investigation without the appearance of interfering with the Court’s docket.

Garland likely understands that if he declines the request for a special counsel, he will be seen as complicit in permitting corruption on the Court to continue unchecked. His detractors on the left will be furious. Yet he also likely understands that any appointment of a special counsel will add fuel to the claims by the right, however unfounded, that the Biden Administration is out to punish its political opponents through prosecution.

No matter what happens next with the request for a special counsel, one thing is already clear: The political pressure on Justice Thomas is building. If the Democrats regain the House majority, impeachment of Thomas will almost certainly now be on the table. Indeed, Democrats should run on it.

Together with the naked, partisan bias of Justice Alito, the overturning of 50 years of abortion rights through Dobbs, and the democracy-destroying opinions of the latest term, Justice Thomas’s corruption and efforts to hold him accountable will place the Supreme Court squarely on the ballot this November as never before. 

It’s a losing hand for Republicans, who once again must defend extremism and corruption. It’s heartening to witness key Democrats realize that and finally move to significantly raise the stakes for Thomas.