July 5, 2023

Justice Clarence Thomas’ Omissions Are Criminal; Thomas has Deprived the Public of Honest Services, and of What Alexander Hamilton Called “The Good Behavior” Required of Federally Appointed Judges

Julie A. Werner-Simon Former federal prosecutor, constitutional historian, and professor at Drexel’s Kline School of Law, University of Southern California Gould School of Law, and Drexel’s LeBow School of Business

The revelations from ProPublica about Justice Clarence Thomas’ undisclosed receipt of gifts from a particular Republican mega-donor, followed a few weeks later by ProPublica reporting of similarly undisclosed gifts to Justice Samuel Alito from a hedge fund billionaire, have struck yet another blow to a Supreme Court already suffering a legitimacy crisis.

Though the justices are not subject to a binding federal code of conduct (such as those regulating all other federal judges’ acceptance of gifts or restricting Department of Justice employees from accepting gifts from a single source in excess of $20 or $50 in a single year), they are bound by what we old-timers at DOJ called “the Watergate forms.” The latter are financial disclosure forms, mandated post-Watergate, that supervisory, high-level and/or Senate confirmed federal employees from the three branches (congressional, executive, and judiciary) must complete every year.

While nothing prevents the nine federal jurists occupying One First Street NE in D.C. and their families from accepting whatever gifts they choose, they (like the rest of the supervisors on the federal payroll who maintain positions of public trust) must truthfully and completely fill out the annual disclosure forms. The purpose of the legislation that mandates disclosure for the federal higher-ups who receive paychecks from the U.S. Treasury is crystal clear from its title. It’s called the Ethics in Government Act of 1978.

Justices Thomas and Alito, like me when I was a federal prosecutor, are required to disclose what they, their spouses, and their dependents received from third parties. Why? Because the public is entitled to know. For Justice Thomas to say that “colleagues and others in the judiciary” said it was okay to not provide information to the public about these gifts conflicts with the explicit words of the disclosure statute. In my over 30 years as a prosecutor, in those cases when a defendant took the stand, I cannot recall one where a jury bought the defense of “my friends said it was okay to do.”

Nor was there any need for Justice Thomas to rely on colleagues for direction. Just like the other two branches of government – the executive branch (from the President to those of us at DOJ) and Congress – the judiciary, including Justices Thomas and Alito and all their colleagues on the Court, have a detailed instruction manual that explains the nuts and bolts of disclosure.

The justices (who both espouse an originalist, literal view of the words of the constitution and statutes) know better than to blame the "bad advice” of unnamed colleagues, in Justice Thomas case, or a contorted interpretation of the word “hospitality,” in Justice Alito’s case, for their misbehavior. The words of the 1978 Watergate disclosure statute are clear and require disclosure of benefits to the federal employee, the federal employee’s dependents, as well as the employee’s spouse. In fact, the ethics statute was amended after the 2013 case of U.S. v. Windsor that recognized marriage equality in federal law, to make clear that federal employees must also disclose benefits provided to same-sex spouses. Thomas, who rejects reliance on legislative history and historical context outside of the words of a statute, could have just looked at the words of the statute. He did this earlier in his life as a jurist, when he disclosed the 2001 gift from Harlan Crow, the Republican megadonor, of a copy of the bible owned by Frederick Douglass.

It is bad enough that Justice Thomas did not disclose the foreign and domestic travel on a private jet, including his luxury travel to a cemetery where the statue of the jurist’s favorite nun – commissioned and paid for by Crow – was unveiled, as well as the jurist’s luxury stays at Crow’s private lakeside up-state New York resort; the payment of Thomas’ mother’s mortgage and his wife’s consulting fees, plus a commissioned portrait of the justice and his wife.

But the fact that the donor, Harlan Crow, is an incendiary Republican cultural warrior who funds groups that deride women’s bodily autonomy, deny climate change, are anti-voting access, and entertain and connect those who support a Christian nationalist theocracy, makes the disclosure to the public all the more necessary. Absent ProPublica’s reporting, it would have been hard for the public to know about the numerous gifts Crow has bestowed on the justice and his family and the fact that Crow’s “connected groups” have a near “perfect record of litigation” in cases before the Court.

Justice Thomas’ decades of material omissions warrant his resignation from the court. This will not happen. No one can make him resign. Nor is Congress likely to use its authority to impeach him. Some in Congress have characterized the coverage of Justice Thomas’ decades of brazen omissions as a partisan attack. This leaves it to Chief Justice John Roberts to do the right thing. A huge swath of Thomas’ misconduct has been on Roberts’ watch.

Roberts surely understands that the high court may be called the Roberts’ Court, but it is no longer his. Recall that although he concurred with the outcome in the June 2022 Dobbs (death of Roe) case, the Chief Justice  wrote his own concurring opinion. Roberts could not abide Justice Alito’s oozing vitriol or what noted California attorney and author William Domnarski calls the embarrassingly one-sided” majority opinion in Dobbs. The Chief Justice well knows that the Supreme Court is no longer a body operating under his purported mantra of “institutional integrity.”

The Supreme Court’s post-Brown v. Board of Education (1954) legitimacy is lost. Those of us who teach law talk differently about the role of the Court since Dobbs. We bemoan the loss of what Justice O’Connor (in Planned Parenthood v. Casey (1992)) referred to as the reliance of a generation of women on the court’s Roe decision to make the most personal of life’s decisions.

All who serve in government owe the public a duty of trust. The Chief Justice owes us a specific, heightened duty as the highest of our Article III jurists. If the Chief cannot corral one or more of his “brethren” to do the right thing and take his leave, then Chief Justice Roberts should do so in Thomas’ stead. That action would speak volumes.

Even absent action by the Chief Justice, there are ample grounds for the United States Attorney General to take action. In 1988, Congress amended the bread and butter of federal fraud crimes against government officials, 18 United States Code Section 1346, to clarify that public officials who deprive the citizenry of the right to good government violate federal law. It codifies “the good behavior” of jurists that founding father Alexander Hamilton promised in his famous Federalist Paper No. 78.

Attorney General Garland, Justice Thomas has violated the law under multiple statutes and in multiple ways. At a minimum, present this case (involving Justice Thomas and the first of the recent Supreme Court ethics disclosure omissions) to the grand jury.

My prediction is that the grand jury will indict, a petite jury will convict, and America will be better for it.

Julie A. Werner-Simon is a former federal prosecutor who served the United States in Los Angeles and Alaska. She held positions at the U.S. Department of Justice to include Senior Litigation Counsel of Major Frauds and Deputy Chief of the Organized Crime Strike Force. She has an LLM in constitutional studies and is an adjunct law professor at University of Southern California’s Gould School of Law, at Drexel University’s Kline School of Law, and is also a legal analyst in emerging business at Drexel’s LeBow School of Business.