Sen. Sheldon Whitehouse (D-R.I.), a senior member of the Senate Judiciary Committee, called on the body overseeing the federal judiciary to refer Justice Clarence Thomas to the Department of Justice for investigation into his failure to properly report gifts from a billionaire benefactor.
“It would be best for the Chief Justice to commence a proper investigation, but after a week of silence from the Court and this latest disturbing reporting, I’m urging the Judicial Conference to step in and refer Justice Thomas to the Attorney General for investigation,” Whitehouse said in a statement released Thursday night.
Whitehouse, joined by other Democrats, including Senate Judiciary Committee Chairman Dick Durbin (D-Ill.), previously called on Chief Justice John Roberts to investigate Thomas’ failure to disclose hundreds of thousands of dollars in gifts from billionaire Harlan Crow. Those gifts, uncovered by ProPublica, included multiple expensive luxury vacations on Crow’s superyacht for Thomas and his wife, Ginni Thomas, and regular use of Crow’s private jet. Thomas did not disclose these gifts in his mandated annual personal financial reports.
In addition to the luxury vacations and private jet use, Crow purchased Thomas’ ancestral home in Georgia, where his mother still resides, from him for an inflated price, ProPublica reported on Thursday. While Thomas had listed his interest in the home on his financial reports in the past, he did not disclose the sale to Crow as required by law.
Whitehouse and Rep. Hank Johnson (D-Ga.) sent a letter to the Judicial Conference on Friday asking it to “refer Justice Thomas to the Attorney General for further action.”
The letter states: “Potential violations of disclosure laws by officers of the highest court merit serious investigation, and it is well past time for the Supreme Court to align with the rest of the government on ethics requirements.”
Supreme Court justices are required to disclose certain gifts and sales under federal ethics laws. In the past, some gifts of lodging and hospitality provided by friends were exempt from disclosure. Thomas claims that he believed that he was not required to disclose the travel, lodging and food provided by Crow.
In March, the Judicial Conference, the body that sets rules for the federal judiciary, updated its disclosure guidelines to clarify that justices must report gifts of lodging and hospitality not provided at a personal residence owned directly by the gift-giving individual and private travel to such locations.
The financial disclosure law that Thomas is alleged to have violated states that justices must “knowingly and willfully” fail to report gifts that should have been disclosed. Such a violation may result in fines up to $50,000, or, if the violator falsifies a report, not more than one year in prison.
The Judicial Conference is the body designated by ethics law to refer members of the judiciary to the Attorney General for investigation.
Whitehouse’s call for a referral for investigation into Thomas follows a similar letter to the Judicial Conference sent by the ethics watchdog group Campaign Legal Center. That letter noted that Thomas previously disclosed similar gifts of travel from Crow, but stopped disclosing them after the Los Angeles Times reported on his relationship with the billionaire in 2004. This sudden change in disclosure “demonstrated knowledge of the requirement” that he disclose such gifts, a precondition for guilt under the ethics law.
The CLC letter also notes that Thomas has a long history of failing to disclose gifts and income. In 2011, Thomas amended 20 years of his financial reports to account for his failure to disclose his wife’s income at various conservative political and educational institutions despite previously properly disclosing such income.
It has been 54 years since the Justice Department opened an investigation into a sitting Supreme Court justice.
In 1968, President Lyndon Johnson nominated Justice Abe Fortas to replace the retiring Earl Warren as Chief Justice. A bitter campaign to defeat the liberal justice’s nomination to lead the court, fueled in part by the antisemitism (Fortas was Jewish) of Southern segregationists like Republican Strom Thurmond and Democrat James Eastland, commenced.
Fortas’ nomination was ultimately blocked by a filibuster, but he remained on the bench as an associate justice. In the process, Thurmond attacked Fortas for receiving $15,000 paid by his former corporate clients and legal partners for nine speeches at American University.
In 1969, news reports revealed that Fortas received a $20,000 annual retainer from the family foundation of financier Louis Wolfson beginning in 1966. Wolfson had been convicted of illegal stock trading and appealed his conviction to the Supreme Court. The court didn’t take the case and Fortas didn’t take part in its consideration, but the payments created an appearance of corruption.
The Justice Department opened an investigation into Fortas after assistant attorney general and future Supreme Court Chief Justice William Rehnquist convinced President Richard Nixon that it would be legal to do so. Fortas ultimately resigned his seat after Attorney General John Mitchell threatened to indict him for tax fraud if he did not do so. The ethics law that Thomas is alleged to have broken was extended to cover judges following the revelations of payments to Fortas and other justices.
The campaign against Fortas was the beginning of the conservative push to take over the Supreme Court. It provided Nixon with two open court seats, first the Chief Justice seat being vacated by Warren and then Fortas’. Nixon appointed Warren Burger to replace Warren while attempting to fill Fortas’ seat with a Southern conservative segregationist in order to fulfill a campaign promise to Thurmond, but the Democratic Senate blocked him twice.
This episode launched the judicial wars that culminated in the conservative triumph after President Donald Trump replaced the late liberal Justice Ruth Bader Ginsberg with the conservative Justice Amy Coney Barrett.
The shift in the court to the right elevated Thomas from the margins to the center of a court bloc aimed at rolling back the 20th century decisions pronounced by the likes of liberals like Fortas. But now he faces a similar controversy for breaking a law passed in Fortas’ wake.