Clarence Thomas Broke the Law. Why Is He Not Being
Prosecuted?
The debate about whether Supreme Court justices are bound
by ethics rules drew attention away from the fact that Clarence Thomas’s
conduct violated federal laws.
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On November 13, 2023, the Supreme Court adopted the Code of Conduct for Justices of the United States Supreme Court.
It did so in in the wake of revelations of lavish gifts to
Justice Clarence Thomas by wealthy conservatives over two decades. A small
group of conservative billionaires enabled Thomas to enjoy a lifestyle that he
could not otherwise afford and which he concealed. The chief justice insisted
that the court is not bound by the existing Code of Conduct for United States
Judges or other statutes and rules applicable to lower federal judges, so
whether the gifts and the failure to disclose them violated anything other than
unenforceable norms is said to be unclear. The court’s announcement of the new
Code of Conduct was a concession to criticism by lawmakers and others, although
it contained no process for sanctioning violators. It has no relevance,
however, to whether Thomas’s concealment of the gifts and the donors violated
the law.
The debate about whether the justices were or should be
bound by any ethics rules drew attention away from the fact that Thomas’s
conduct violated federal laws specifically requiring him to disclose the gifts.
Thomas was legally obliged to disclose the gifts as well as the donors and
should be prosecuted for failing to do so.
The Ethics in Government Act requires all covered
officials, explicitly including Supreme Court justices, to disclose gifts on
forms designed for that purpose, known as “OGE [Office of Government Ethics]
forms.” Specifically, covered officials must file reports which include a “full
and complete statement” with respect to
the identity of the source, a brief description, and the
value of all gifts aggregating more than minimal value…or $250, received from
any source other than a relative of the reporting individual…except that any
food, lodging or entertainment received as personal hospitality of an
individual need not be reported…
5 U.S.C. § 13104 (a)(2)(A)
Personal hospitality is defined as
hospitality extended for a nonbusiness purpose by an
individual, not a corporation or organization, at the personal residence of the
individual or the individual’s family, or on property or facilities owned by
that individual or the individual’s family.
5 U.S.C. § 13101(14)
The forms require a certification that the information
provided by the filer is “accurate, true and complete to the best of my
knowledge.”
ProPublica has revealed that
over two decades Harlan Crow, Charles and David Koch, the Koch network, Wayne
Huizenga, David Sokol, and Paul Novelly provided Thomas with 38 vacations, 26
private jet flights, eight flights by helicopter, a dozen VIP passes to
sporting events, attendance as a guest at the exclusive Bohemian Club, travel
on a private jet to and lodging at Koch network summits at resorts in
California tuition for his nephew in a private school, and a $267,000 loan used
to purchase a luxury recreational vehicle. Crow even purchased the home in
which Thomas’s mother lived and then allowed her to live there rent-free.
Thomas reported none of this.
Thomas claimed that his failure to report the gifts was due
to bad advice from as of yet unidentified colleagues or advisers. That excuse
is hard to square with the plain language of the statute. There is not much to
argue about in the meaning of “gift.”
If Thomas contends that he understood all the things of
value described above as “personal hospitality,” that may satisfy some
ideological supporters, but it will not pass the straight-face test.
Putting aside the private jets, yachts, and resorts, there
is no reasonable interpretation by which sports tickets and guest status at
Bohemian Grove and at the Koch network—let alone the satisfaction of the
outstanding loan on the RV, tuition for his nephew, and free rent for his
mother were “personal hospitality.”
The magnitude of the benefits and the period during which
they were bestowed is grotesque. There may be innocent explanations, but the
most obvious conclusion is that the justice engaged in a decades-long scheme to
conceal a more luxurious lifestyle than he could afford and hid the identity of
persons who provided it. It has recently been reported that he complained
bitterly in 2000 and thereafter that his salary was unfairly low and that he
was threatening to resign. Whether he chose not to disclose the gifts or made a
mistake is certainly an important question, but it is relevant that he reported
similar, if less significant, largesse during earlier periods, making it harder
to believe that he did not know what he had to report.
Intentional failure by public officials to disclose gifts,
including forgiven loans, on the OGE forms is so clearly criminal that it is
prosecuted as a felony under the False Statements Statute, 18 U.S.C. § 1001,
particularly subsection (a)(1). That section makes it a crime to, “falsif[y],
conceal, or cover up by any trick, scheme or device a material fact.”
Leaving a gift or loan off the form is the same as making
an affirmative false statement that there was no such gift or loan. Thomas
formally certified that his financial disclosures on the forms were “accurate,
true and complete to the best of my information and belief.” The omission and
the accompanying certification of completeness make the form a false statement.
Moreover, on occasions when he disclosed no gifts, he marked a box attesting
that he had “None.”
Criminal liability for these omissions is not a new
concept. In 2008, the chief of staff of the General Services Administration,
David Safavian, was indicted for multiple felonies arising out of a vacation
provided to him by lobbyist Jack Abramoff. The third count of the indictment
alleged that Safavian made a false statement when he failed to disclose on his
OGE form the actual value of travel and lodging provided by the lobbyist.
Safavian was convicted and sentenced to prison on that count as well as four
others.
It was also the basis for a 2021 non-prosecution agreement
with former Secretary of Transportation Ray LaHood in 2021. The US attorney for
the Central District of California threatened to prosecute LaHood for failing
to disclose a $50,000 loan on his OGE form and LaHood agreed to pay a fine and
repay the loan to avoid prosecution. LaHood explained that he did not disclose
the loan because he did not want to be associated with the lender.
In 2005, the Department of Justice indicted Erik Blowers,
an FBI agent, under 18 U.S.C. § 1001 for failing to include two free trips to
Las Vegas on his OGE form and in 2016, Leonardo Silva, also an FBI agent, was
charged with a similar crime for failure to disclose numerous trips on private
planes paid for by others.
The Office of Government Ethics publishes a survey of
prosecutions implicating the conflict of interest statutes conducted since the
law took effect. That list includes 69 cases involving inaccurate financial
disclosure forms. Seven of those involved undisclosed free trips and 20
involved undisclosed gifts. The OGE forms are taken seriously, and they are
intended to be. They force public officials to disclose relationships with
third parties exactly like the ones Thomas enjoyed and kept secret—relationships
that might constitute conflicts of interest or influence the performance of
official duties.
Whether Supreme Court justices are obliged by former or
present ethical codes to comply with disclosure laws is irrelevant to whether
failing to report gifts on disclosure forms is a crime. Omissions of material
information from disclosure forms are serious violations of law, and they
subject the people who commit them to serious punishment.
If anyone other than a Supreme Court justice had so
falsified their financial disclosure form, they would have been indicted long
ago, or at least subjected to a searching investigation. The facts available
should trigger immediate commencement of a criminal investigation. Thomas
should not be treated differently from the many others who concealed less
valuable gifts. His position as a justice on the highest court in the land
should require more candor, not less, in reporting the kind of relationships the
Ethics in Government Act requires be made public. If those responsible for
enforcement of the law determine not to pursue his conduct, they need a better
reason than that his status makes him immune.
