Avoiding DOJ Referral Evoking the George Costanza Defense

When is enough, enough??? Clarence Thomas self-indulgence in gift giving is ignored claiming ignorance of such practices. A while back, a long while . . . I was given an invitation to the Chicago Bears holiday get together (called a dinner and a party) by Gale Sayers. The only problem with this being, I was the granter of purchase orders to Mr. Sayer’s business at the time. Do I stick-my-neck out and just go?

Nooo, I played it safe and asked my boss if I could go. He promptly said no. One unsigned football later, by Jim McMahon and many of the other players on that team who spanked the Packers that year in the eighties. I still wonder if I just should have just went and not asked first. Pleading ignorance would not have worked, I am sure.

Then there is Justice Clarence Thomas pleading ignorance.

Clarence Thomas Avoids DOJ Referral Evoking George Costanza Defense, Above the Law, Joe Patrice

“Remember, it’s not a lie if you believe it.”

There’s an episode of Seinfeld where George has sex with a cleaning lady on his office desk and when confronted responds, “Was that wrong? Should I have not done that?” But, since Seinfeld more closely tracks a universe where actions have logical consequences, George got fired and Clarence Thomas gets to plead ignorance about a nearly five-decade-old law.

Thomas, who has forgotten more vacations than you’ll ever know, has been the subject of a Senate Judiciary inquiry ever since ProPublica first identified around half a million in luxury travel and gifts without disclosing any of it as legally required by the Ethics in Government Act of 1978. Along the way, we’ve learned about free tuition, free housing, and an RV (which might also have been free). The legislators wrote the Judicial Conference asking the Article III institution to do its job under the statute and refer Thomas to the Department of Justice. Almost two years after the fact, the Conference has decided to do nothing instead.

In a letter from the Judicial Conference to Senator Sheldon Whitehouse, Secretary of the Judicial Conference Judge Robert Conrad said that they’d decided against doing anything because Thomas was probably just confused about how to read the plain meaning of a law. A plausible excuse based upon his jurisprudence generally, but highly suspect here.

In March and April 2023, the Financial Disclosure Committee, with the approval of the Judicial Conference, issued guidance that the personal hospitality gift reporting exemption applies only to food, lodging, or entertainment. The exemption, it explained, does not apply to gifts of “transportation that substitute[] for commercial transportation,” gifts “extended for a business purpose,” or gifts “extended at a commercial property, e.g., a resort or restaurant, or at a property that is regularly rented out to others for a business purpose.” The Financial Disclosure Committee, generally speaking, does not apply new guidance retroactively to previously filed reports.

This is the “I didn’t hear anyone say ‘Simon Says’” of excuses.

The problem with “not apply[ing] new guidance retroactively,” is that presumes there’s something “new” about the guidance. No one was actually confused over the scope of this exception before this. No one thought an exception for crashing on your college roommate’s couch was the same as “having a billionaire give your mom a house rent free.” Elena Kagan thought a f_cking bagel basket from her high school classmates put her in breach of this law! Everyone knew!

More to the point, when some of the allegations in this matter include auto loan forgiveness shenanigans  and off-the-books payments, there’s more than a little to suggest that Thomas knew. At least enough suggestion that the case would benefit from a DOJ inquiry.

“Not only do presidents have absolute immunity from prosecution for violating the law, but now Supreme Court justices enjoy immunity for law-breaking, as well,” explained Fix the Court’s Gabe Roth. “That is as shameful as it is contrary to the plain-text reading of the financial disclosure law, which sets clear guidelines about the types of gifts that need to be reported — which Justice Thomas has obviously and frequently violated over the years — and includes real consequences for violations.”

Alas, the Conference explained that Thomas has made some changes so everyone should just chill.

Justice Thomas has filed amended financial disclosure statements that address several issues identified in your letter.

“Several” is conspicuously not “all.”

Which may sound like nitpicking, but lawyers — especially judges — aren’t casual with words like these. When he says, “several” he means “not all” and it would be interesting to get more clarity on just what it doesn’t include.

But even if the Conference hadn’t found a way to excuse Thomas as confused, the letter suggests they might have tried to avoid their legal obligations the old-fashioned way by declaring the Supreme Court exempt from any consequences:

First, the Judicial Conference has never taken a position on whether its referral authority under 5 U.S.C. § 13106(b)—to refer judges to the Attorney General for investigation into whether they have “willfully” violated their reporting obligations—applies to Justices of the Supreme Court of the United States. The question, to be clear, is not whether the Ethics in Government Act applies to the Justices of the Court. It is whether the Judicial Conference’s referral authority applies to the Justices. There is reason to doubt that the Conference has any such authority. Because the Judicial Conference does not superintend the Supreme Court and because any effort to grant the Conference such authority would raise serious constitutional questions, one would expect Congress at a minimum to state any such directive clearly.

Not to get all originalist, but this is hogwash. Roth explains, “The Conference writing the justices out of much of the disclosure law is also ahistorical, as the law was drafted shortly after two justices were found to have accepted outside — and arguably unethical — income. ”

But, as Chief Justice Roberts explained earlier this week, it’s wrong to point out that your judicial emperor wears no clothes.

Clarence Thomas Secretly Accepted Luxury Trips From GOP Donor, ProPublica