To clarify, if a state politician accepts even a sandwich, they must declare it. I understand; I worked in local government for 14 years.
So it’s been tough to understand how Supreme Court Justice Clarence Thomas got away with accepting free excursions on superyachts and private jets owned by a billionaire, Harlan Crow, as well as a sweetheart real estate transaction with the same billionaire, without declaring them. For many years.
Regardless, that appears to be what occurred. And now that it’s all come to light, Thomas’s celebration should be finished. While there has been much talk about accountability, it has been less obvious how it will be implemented. Thomas has refused to resign. Given the Republican majority in the House, impeachment appears exceedingly unlikely. Senate hearings are possible, which is a positive move.
Fortunately, there are other possibilities, including one that is quite strong and has solid legal underpinnings: a Department of Justice (DOJ) investigation under federal statutes that compel disclosure of the types of perks Thomas has received, as well as penalties for offenders.
The DOJ should conduct an immediate investigation into Thomas’ unethical and possibly unlawful actions.
Many observers have pointed out that federal ethics legislation, which applies to all three levels of government, including Supreme Court justices, has long required gift disclosure on a form that must be completed annually. After Watergate, Congress created the Act to help protect against ethical crimes by government officials. According to the law, a “gift” is defined as the receiving of money or “anything of value,” including “overnight lodging.”
Thus far, so good. The true kicker in this instance is a provision in that federal statute, 5 U.S. Code 13101, 13104, and 13106(a), which allows the Justice Department to pursue both civil and criminal sanctions against government officials who fail to declare gifts as required.
The penalty is not excessive. The impact of a Department of Justice finding of guilt would be even more significant than the cash penalty. If a Supreme Court justice is found guilty of a crime while in office, there will be immense pressure on him or her to resign or be removed. It took significantly less time for Justice Abe Fortas to resign in 1969, following suspicions of financial wrongdoing.
Thomas has maintained that the free luxury vacations and accommodations he received were “personal hospitality” and so not subject to reporting obligations. This beggars belief. Even if part of the food and entertainment may be justified as an exception to reporting requirements, many other amenities could not. Free use of Crow’s private jet for Thomas’ personal travel is one example; all you have to do is read the reporting requirements to realize that this type of free transportation is plainly not included in the “personal hospitality” exclusion.
Concerning the real estate transaction, Thomas has declared that he will reconsider revising his disclosure forms. That’s all right.
As unpleasant as this is, it is also not out of character. For years, Thomas and his wife have been at the center of various ethics issues. It has become extremely disappointing, if not revolting, to witness the never-ending Thomas carnival of corruption bring shame to the Supreme Court. It’s time to call it quits.
There is a broader discussion to be made about how desperately we need an enforced code of ethics for the Supreme Court to prevent a variety of potential violations by justices now and in the future. And there is a growing desire to extend the court in order to reclaim public trust and prevent it from becoming what it has become: an institution with a conservative majority founded by unethical if not plain corrupt, tactics. That is also part of a bigger discussion.
But, for the time being, there is a clear avenue to hold Clarence Thomas accountable. His acts are undeniably wrong, and the Justice Department has the legal grounds and ability to investigate and determine whether they are clearly criminal. That authority should be used as intended.
And, if Thomas is found guilty, the DOJ should prosecute him.