I sent this Salon article on the Supreme Court justice Clarence Thomas The bigger Clarence Thomas scandal by Ben Adler to Beverly Mann asking her what she thought of the article. The article discusses the possible conflict of interest regarding Judge Thomas’s ruling on Citizen’s United and his failure to disclose his wife’s earnings:
Experts on legal ethics don’t all agree on whether Thomas should have recused himself in Citizens United and whether he will be honor bound to do so for healthcare reform. But they are unanimous in their condemnation of Thomas’ dishonest filings on his disclosure forms. “Since it went on for six years [2003-2007 and 2009] it’s especially troublesome,” says Stephen Gillers, a prominent expert on legal ethics at NYU law school. “It’s impossible to claim it’s an oversight.”
The article makes clear that the rules such as the Code of Judicial Conduct do not apply to Supreme Court Justices, and suggests we take take a look at the matter.
Beberly Mann responds to my query on what she thought of the article:
What a terrific article. Thanks for pointing it out to me.
One thing that jumped out at me was that the expenses for Thomas’s trip to Palm Springs to attend a conference sponsored by the Koch brothers, and which Thomas reported as being paid by the Federalist Society, might have come from Koch Industries instead. I knew that there was a discrepancy between one of Thomas’s versions of events (that he only popped into the conference for a few minutes) and a more recent version (that he attended all four days of the conference. The latter version was given after there were questions raised about the propriety of Thomas’s accepting airfare and four days’ hotel costs from the Federalist Society if he only popped into the conference for a few minutes.
But I didn’t know that there’s some suspicion that it actually was Koch Industries rather than the Federalist Society that paid his expenses. That would be breathtaking, in my opinion, especially if he lied about the source of the money on his disclosure statement.
As for Thomas’s having filed false disclosure statements for at least six years (somewhere, I read that the number of years is greater than six) concerning his wife’s income, a friend of mine has suggested that it violates a particular criminal statute, 18 U.S.C. § 1001, titled “Statements or entries generally. My friend also says, “The DoJ said that the statute was aimed at willful failure to make proper EIGA disclosure.” The EIGA is the Ethics In Government Act of 1978, which is the statute that requires disclosure statements.
This is not my area of expertise, so I can’t (or at least shouldn’t) comment more on this. It is the Department of Justice’s Public Integrity Section’s area of expertise, though, and if the filing of knowingly false disclosure statements does violate that or another criminal statute, then I would hope the DoJ will investigate. I also hope that if it is, the lawyers who work on the matter include Republicans, maybe even a Federalist Society member or two, as well as non-Republicans. This should be entirely apolitical. It really, really bothers me that this justice apparently simply decided to not comply with that law, and that he just presumed that because of his position as a controversial justice he was untouchable because it would cause too much political controversy to actually investigate him under the criminal law (I’m assuming here that this does violate a criminal statute, although, as I said, I don’t really know.)
If the Doj does investigate, it would be done secretly, at least initially.
Another thing mentioned in the article that I didn’t know—but am absolutely ecstatic to hear—is that Grassley had reintroduced a bill to establish an office of inspector general for the federal courts. I know that that was something that was proposed by House and Senate Republican Judiciary Committee members back before the Republicans lost control of both houses in the 2006 election—and it was the single thing on which I agreed with the Republicans rather than the Dems. It was, of course, very controversial. High-profile members of the judiciary, present and retired, complained publicly that this was an assault on the independence of the judiciary.
I absolutely disagree, if it’s set up properly and with meaningful safeguards. To avoid separation-of-powers problems, it would have to be part of the judicial branch, just as the various executive-branch offices of inspector generals, such as the one Justice Department’s Office of Inspector General, are part of the executive branch. But an obviously key part of the setup is that they operative independent of the executive branch hierarchy.