The Los Angeles Times on Monday posted a scathing piece by constitutional law professor Jonathan Turley about the slowly churning Clarence Thomas scandal, which hasn’t gathered much media steam despite its grave implications.
Turley writes:
In January, Common Cause released documents showing that Thomas had attended events funded by conservative billionaires David and Charles Koch. Thomas was even featured in Koch promotional material — along with Glenn Beck, Rush Limbaugh and others — for events that sought financial and political support for conservative political causes.
Worse yet, Common Cause discovered that Thomas had failed to disclose a source of income for 13 years on required federal forms. Thomas stated that his wife, Virginia, had no income, when in truth she had hundreds of thousands of dollars of income from conservative organizations, including roughly $700,000 from the Heritage Foundation between 2003 and 2007. Thomas reported “none” in answering specific questions about “spousal non-investment income” on annual forms — answers expressly made “subject to civil and criminal sanctions.”
In the interests of full disclosure, I was consulted by Common Cause before the release of the Thomas documents. I found the violations regarding Virginia Thomas’ income particularly alarming.
Virginia Thomas was receiving money from groups that had expressed direct interest in the outcome of cases that came before her husband, including Citizens United vs. Federal Election Commission, in which the court in 2010 struck down limitations on corporate contributions to elections.
A justice is expressly required by federal law to recuse himself from any case “in which his impartiality might reasonably be questioned.” This law specifically requires recusal when he knows that “his spouse … has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”
The financial disclosure forms are meant to assist the public in determining conflicts of interest. Though Thomas clearly could argue that his wife’s ties to these organizations were not grounds for recusal, he denied the court and the public the ability to fully evaluate those conflicts at the time. Instead, Thomas misled the public for years on the considerable wealth he and his wife were accumulating from ideological groups.
After Common Cause detailed the violations, Thomas simply wrote a brief letter to the court saying that the information was “inadvertently omitted due to a misunderstanding of the filing instructions.”
It is unclear how Thomas will rule in the next case in which an individual is accused of a failure to disclose on tax or other government forms. Thomas is viewed as one of the least sympathetic justices to such defenses. Indeed, last year, he joined a decision in Jerman vs. Carlisle that rejected a defense from debt collectors that their violations were due to misunderstandings of the requirements of federal law and just “bona fide errors.” In rejecting the claim that such errors were not intentional, the court reminded the defendants that “we have long recognized the common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally.” [Emphases added]
And therein lies the point. If Clarence Thomas vs. the Filing Forms were to come before the Supreme Court, who doubts that Justice Thomas would rule in favor of the Filing Forms? How can a man be both fit to serve on the highest court in the land, and unable to understand simple filing instructions? Worse, Thomas’ ommissions — whether willful or (though this seems extraordinarily unlikely) accidental — had the effect of obscuring the fact that Ginny Thomas and the groups she worked for stood to benefit from her husband’s rulings.
If Bill Clinton’s daliance with Monica Lewinski, and his failure to disclose it, were impeachable offenses in the eyes of Republicans in Congress during the 1990s, why not this?
And consider the case of U.S. District Judge Thomas Porteous, who was impeached and convicted in December 2010 – the first such federal impeachment trial since Clinton’s. What did Judge Porteous do?
U.S. District Judge Thomas Porteous admits he came to depend on alcohol to get through the day and that he was addicted to gambling. He does not deny that he submitted false statements in his personal bankruptcy, on his annual financial disclosure forms and on his application for a bank loan. He concedes that lawyer friends bailed him out of one financial jam after another over the years, even when they had cases pending in his court.
His own attorney said Porteous deserves the public reprimand he received this month from his superiors.
But Porteous now faces the prospect of the ultimate sanction, impeachment and possible removal from office, in an arena where the standard for conviction is high and the guidelines for booting a judge are open to considerable interpretation.
…
His superiors, on the Judicial Council of the 5th Circuit Court of Appeals in New Orleans [PDF] and the Judicial Conference of the United States [PDF], already have called for his impeachment. But Porteous, his defense team and four dissenting 5th Circuit judges say his caddish behavior is irrelevant when it comes to the Constitution. For the most part, they say, he gambled, drank and lied in his private affairs — not as a judge.
Removing him from office for what they consider private behavior could serve to tighten scrutiny of federal judges, legal analysts say. Only seven judges have been impeached and convicted in U.S. history, and only two of them for misconduct committed outside their official capacity on the bench, they said.
Porteous, 62, of Metairie, would be the third.
The charges:
President Clinton nominated Porteous to the federal court in 1994, after he spent 10 years as an elected judge of the state’s 24th Judicial District Court in Gretna.
By 2002, when the FBI’s Wrinkled Robe investigation of corruption at the Gretna courthouse became public knowledge, it was clear that Porteous, too, was under scrutiny. Two state judges and 12 other defendants were convicted of Wrinkled Robe crimes, but the U.S. Justice Department decided in 2007 not to charge Porteous with a crime.
Once the Justice Department backed off, the 5th Circuit’s Judicial Council took up the case against him. The council accused him last fall of making false statements during his 2001 bankruptcy and violating the Bankruptcy Court’s orders, lying on the annual disclosure statements that he filed as a judge, accepting cash and gifts from lawyers with cases in his court, lying on an application for a $5,000 bank loan and violating codes of conduct for judges.
Of those, the allegation most directly related to Porteous’ work as a judge is that he asked for and accepted money from three attorneys who were litigating a dispute about ownership of a Kenner hospital, said Arthur Hellman, a law professor with the University of Pittsburgh who has followed the Porteous case closely. As presiding judge, Porteous never disclosed his financial connections during the trial.
Still, no one has demonstrated that Porteous tilted his rulings in exchange for cash, and Porteous has denied that notion. The attorneys were longtime friends of his.
“All of my dealings with the attorneys … were as a friend to a friend,” he wrote. “No gift was given as a lawyer to a judge.”
The rest of the Judicial Council’s case against Porteous accuses him of lying on his bankruptcy forms, bank fraud, lying on his financial disclosure forms as a judge and violating the code of conduct for federal judges.
The part about lying on the disclosure forms is intriguing, as we look at the Thomas case. And while no one is accusing Clarence Thomas of taking bribes, he and his wife did receive things of value from her benefactors – neary $1 million that wasn’t disclosed, for starters. And Ginny Thomas’ employers (and her tea party organization) have clearly benefited from the rulings of the Roberts court’s conservative majority. Even if you strip away the issues of Thomas accepting a four-day stay at a conservative retreat, the failure to disclose alone raises troubling questions that should – one would think – at least raise the specter of impeachment.
The Huffpo’s Andrew Reinbach goes there:
Why shouldn’t Clarence Thomas be impeached?
If Mr. Justice Thomas takes allegations he committed perjury for 13 years seriously enough to defend himself before a recent Federalist Society dinner, then they’re certainly serious enough to warrant formal investigation of said allegations.
And if these allegations are based on written evidence, as they apparently are — among said evidence is, reportedly, 13 years of sworn financial disclosure forms claiming Mrs. Thomas earned no income, when in fact she earned plenty, much directly related to cases before him — then it looks to non-lawyer me like something that can only be decided in a trial — which is what an impeachment is.
Common Cause, which uncovered this, took a more cautious bead on the issue when it wrote to Attorney General Eric Holder and suggested that Justices Thomas and Scalia should have recused themselves from certain cases before the Supreme Court — especially, in Mr. Justice Thomas’ case, Citizens United v. FEC.
And considering the likelihood that convicting Mr. Justice Thomas of perjury would at a minimum throw 13 years of Supreme Court decisions into question, I suppose recommending mere recusal is a prudent, even achievable goal.
Even Professor Jonathan Turley of Georgetown Law School, who, in the weekend edition of The Los Angeles Times, makes the case against Mr. Justice Thomas much better than I can, likewise makes no call for impeaching Mr. Justice Thomas.
But not being a Washington-based politician, I feel no such compunction.
Reinbach goes on to deconstruct the political case for Democrats not seeking Thomas’ impeachment. Such a thing would be messy – nasty – and two years before a presidential race, would energize the right the way Scott Walker’s union-busting in Wisconsin has lit a fire under middle class America.
Pushing out a conservative justice on the closely balanced court would ignite judicial world war III – with conservative groups and particularly evangelicals going to Defcon One to defend the conservative gains from the Rehnquist and Roberts eras. The right would literally erupt with the possibility that fights over healthcare reform, abortion and gay marriage could come before a court that if President Obama got to replace a conservative justice, could turn out very differently than expected.
Regardless of the facts, it seems clear that impeachment is not going to happen in the Thomas case – no matter how messy the facts become - since Republicans control the branch of Congress where such a thing would have to begin. Clearly, the tea party controlled House would never dream of going after one of its judicial stars – especially one whose wife is a member of the fold.
So no, impeachment isn’t going to happen – at least not unless between now and 2012. But if the heat on Thomas were to force him to retire, the circus that Democrats in Washington probably fear more than they relish, could yet come to town.
Related: new book makes queasy-making Thomas claims