Clarence Thomas doesn’t talk — at least not during Supreme Court oral arguments. But a speech he appears to have given at an event hosted by the Koch brothers, the anti-Social Security, anti Clean Air Act, libertarian oil and paper magnates who have become key sponsors of tea party conservative groups – and conflicting statements he gave about it — may soon cause him some headaches. Breaking overnight on the New York Times website (with a hat tip to Rachel Maddow, who reported on it in the closing minutes of her show on MSNBC…) as written up by investigative reporter Eric Lichtblau:
WASHINGTON — Discrepancies in reports about an appearance by Justice Clarence Thomas at a political retreat for wealthy conservatives three years ago have prompted new questions to the Supreme Court from a group that advocates changing campaign finance laws.
When questions were first raised about the retreat last month, a court spokeswoman said Justice Thomas had made a “brief drop-by” at the event in Palm Springs, Calif., in January 2008 and had given a talk.
In his financial disclosure report for that year, however, Justice Thomas reported that the Federalist Society, a prominent conservative legal group, had reimbursed him an undisclosed amount for four days of “transportation, meals and accommodations” over the weekend of the retreat. The event is organized by Charles and David Koch, brothers who have used millions of dollars from the energy conglomerate they run in Wichita, Kan., to finance conservative causes.
Arn Pearson, a vice president at the advocacy group Common Cause, said the two statements appeared at odds. His group sent a letter to the Supreme Court on Monday asking for “further clarification” as to whether the justice spent four days at the retreat for the entire event or was there only briefly.
“I don’t think the explanation they’ve given is credible,” Mr. Pearson said in an interview. He said that if Justice Thomas’s visit was a “four-day, all-expenses paid trip in sunny Palm Springs,” it should have been reported as a gift under federal law. …
It’s no small question. Common Cause had already been asserting that Thomas and Antonin Scalia should have recused themselves from the Citizens United case, which clearly benefited the Koch Brothers (the financiers of some of the biggest 2010 election efforts to elect Republicans, underwriters of the partisan/Republican tea party movement, and hosts of numerous retreats for conservative Republican politicians.
This past weekend, at the exclusive Rancho Las Palmas resort near Palm Springs, California, the infamous Koch brothers hosted a gala for some of the largest titans of industry and government; the influential and the moneyed. It wasn’t necessarily a celebratory gathering to praise and applaud those who participated in a hard-fought election, but rather a secretive planning and strategizing session for the prominent conservative elected (and un-elected) officials, donors and strategists that have been shaping American political thought and policy the last few years. The twice-a-year gathering has been framed as a session “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.”
It’s not known whether two Supreme Court justices, namely Antonin Scalia and Clarence Thomas, were attending the Rancho Las Palmas festivities, but it is known that both have had dealings with David and Charles Koch in the past and have been guests of the notorious pair at similar occasions. This has raised red-flags, appropriately so, by legal ethicists and other groups who want to see more disclosure. Although supreme court justices are not barred, like federal judges, from appearing at partisan events, they are ethically-bound from attending overt political planning functions. Obviously, their presence at these conferences greatly raises questions of transparency and, for some, broader concerns about judicial independence.
Last spring, in a letter to Attorney General Eric Holder and signed by Common Cause President & CEO Bob Edgar and Vice President Arn Pearson, they asked that the Justice Department promptly investigate whether Justices Thomas and Scalia should have recused themselves from the Citizens United case. If the Department finds sufficient grounds for disqualification of either Justice, they have requested that the Solicitor General file a motion with the full Supreme Court seeking to vacate the judgment.
Although sufficient evidence may be unattainable, questions included in the petition include: (1) Would a reasonable person question the impartiality of Justices Thomas and Scalia based on their attendance at secretive Koch Industries retreats?, and (2) Does attendance of a closed-door Koch Industries retreat constitute political activity? Common Cause argues, “We believe it is inappropriate for a Supreme Court judge to be ‘featured’ at or attend closed-door strategy meetings with political donors, corporate CEOs, candidates and political officials, and thereby lend the prestige of their position to the political goals of that event” and “A reasonable person would question the impartiality of Justices Thomas and Scalia in the Citizens United case based on their attendance at political strategy meetings sponsored by a corporation that raises and spends millions to defeat Democrats and elect Republicans”.
And there’s another fly in the ointment that may add credence to Common Cause’s request: As you can probably imagine (simply because you undoubtedly consider yourself a “reasonable person”), federal judges — and justices — are required by law to disclose their spouse’s income. This prohibits unsavory organizations and individuals from influencing the judiciary by channeling money (i.e., “influence”) through their wife or husband. Yet, Justice Thomas has not complied with this requirement for years. Between 2003 and 2007, Virginia Thomas, Justice Thomas’ wife, earned $686,589 from the Heritage Foundation, according to a Common Cause review of the foundation’s IRS records. Thomas failed to note the income in his Supreme Court financial disclosure forms for those years, instead checking a box labeled “none” where “spousal noninvestment income” would be disclosed. It’s also known that Virginia Thomas has been active in the political group, Liberty Central, an organization of her founding, that’s predominately guided by the Tea Party’s vague philosophies of limited government, free enterprise, national security, and personal responsibility, and is also funded charitably by Koch Industries, the second largest private corporation in America.
Thus, the Common Cause petition to the Department of Justice also asked a third very critical question: Did Justice Thomas have a conflict of interest based on his wife’s interest in the subject matter of the Citizens United case? If so, and this is an equally important question to ask (again, assuming you’re a “reasonable person”): Does Koch Industries’ ties to Virginia Thomas’ organization, Liberty Central, create an additional appearance of bias for Justice Thomas?
And this from Common Cause itself, which raises the question of whether Thomas’ failure to disclose his and his wife’s ties to interests who stood to benefit from Citizens United could merit something beyond recusal:
In mid-January, as we looked into Justice Scalia’s and Justice Thomas’ attendance at private political strategy and fundraising meetings hosted by Koch Industries, a Common Cause legal fellow discovered a startling omission from Justice Thomas’ annual financial disclosure forms.
Though the employment and political activism of the justice’s wife, Virginia “Ginni” Thomas, was no secret, the justice had failed to report her work on Capitol Hill for then-Rep. Dick Armey in the mid-1990s, for the Heritage Foundation from 1998-2007, and for Hillsdale College in 2008.
Like other federal officials, justices are required to report the sources of “non-investment” income earned each year by their spouses. It’s the law, part of the Ethics in Government Act of 1978, and it seems clear that Justice Thomas was in violation.
We reported the situation to the U.S. Judicial Conference, the agency that collects judicial disclosure forms, and within hours Justice Thomas filed amended forms noting his wife’s employment. His omissions, stretching over 20 years, were inadvertent, the justice explained.
The Ethics Act carries both civil and criminal penalties for anyone who “knowingly and willfully falsifies” or fails to file a disclosure report. The maximum penalty is a $50,000 fine and one year in prison.
So, should Justice Thomas be prosecuted? And if the answer is yes, can he be prosecuted – given that he holds a lifetime appointment and can be removed from office only through impeachment?
Thomas certainly could be prosecuted, even while remaining on the bench. In the early 1990s, Alcee Hastings Jr., a federal district judge in Florida, was indicted by a grand jury and tried on bribery charges. He stayed in office through his trial and was acquitted by a jury, then was impeached by the House and removed from office by the Senate. Hastings ultimately turned to politics and won election to the House in 1992; he is still serving there.
Whether Thomas should be prosecuted is a question first for the Judicial Conference, the agency that collects the disclosure forms, and then for the attorney general. The Ethics Act says if the conference determines that disclosure errors or omissions were knowing and willful, it can refer them to the attorney general for prosecution.
Already, 74 House Democrats have written a letter asking Thomas to recuse himself from any deliberations on healthcare reform, because of Ginny Thomas’ tea party advocacy against the bill.
But these new revelations appear to indicate that Thomas is not just staring right down the gullet of multiple conflicts of interest, he may have also lied about it.
I think it’s time for Clarence to talk.
- Open Salon: A Citizens United conspiracy, complete with two Supremes
- TRR: Belle of the ball: Koch brother, lobbyists, fete the new House majority
- TRR: A stain on the court? Scalia and Thomas’ secret meeting with KochPac raises ethical questions
- TRR: The list, the Koch brothers, and the ‘planning’ of the midterm elections
- TRR: Clarence Thomas’ wife, the tea party, and Citizens United