ProPublica's accusations of impropriety against Supreme Court Justice Thomas
A legal case, a reprimand, or a smear?
Image: US Supreme Court Justice Clarence Thomas.
Background
On 11 April 2022, I attended a webinar held by the publisher ProPublica, which has revealed some astonishing scoop details about US Supreme Court Justice Clarence Thomas. It alleges that he failed properly to make disclosures of hospitality he received from a munificent GOP benefactor, Mr Harlan Crow — in a value exceeding $500,000.
Afterwards, I remained a little puzzled as to what conclusions should be drawn on the matter, and so I addressed some of the following remarks to ProPublica. I shall be following the story closely, so these aren’t views fixed in tablets of stone.
Dear ProPublica
Your initial breaking story grabbed my attention. I think it’s seminal. I hope you do as well, but I’m not sure that you do. So, why do I think it’s seminal and why do I think that you perhaps — I say perhaps — don’t?
I think it’s seminal because the Supreme Court is a final bulwark of American constitutionality. What it does, says what America does; and how it does it, is how America is. There must be nothing that impugns its judgments. Its justices must be above reproach in all matters, because there is little or nothing in the constitutional set-up that can reproach them. Insofar, Chief Justice John Roberts is correct: the rules of disclosure — apparently — do not apply to SCOTUS justices; but they comply with the rules nonetheless, in a manner of speaking, because “it is meet and right that they should.” But, being meet and right is not being legally required. What your reporters seem not yet to have got to grips with is the illegality or otherwise of what they have uncovered: hence my uncertainty as to whether ProPublica views these indiscretions as seminal.
If they are not seminal, then the Wall Street Journal is right: your reports are a smear, and that is unworthy of a publication of your reputation. Indirectly, your reputation is on the line. So, what will take it off the line?
What I can gather is that there is a set of rules, called AO-10, which lay down certain requirements for those involved in the administration of justice. These rules do not seem to apply to justices of the Supreme Court of the US, however. What I cannot gather at this stage are the following:
Was Justice Thomas under any obligation in law to disclose the matters that ProPublica deems he has failed to disclose?
What, generally, are the consequences of any disclosure under AO-10? For instance, does AO-10 constitute a fiscal return, and does any disclosure therefore have fiscal consequences? If not, what exactly are the consequences of disclosure?
What sanctions are imposed on persons who fail to make a proper disclosure in terms of AO-10 (i.e., what are the consequences of non-disclosure)?
Justice Thomas’s response thus far would appear to be that Mr Crow is a friend, and that he is perfectly entitled to accept hospitality bestowed upon him by Mr Crow and, what’s more, is not under any obligation to disclose that hospitality, regardless of its form (even if, on one occasion, he might have done in a distant past).
However, ProPublica’s seminar, as a riposte to that response, did not state clearly whether:
a) ProPublica doubts the nature of the friendship with Mr Crow;
b) ProPublica believes that Mr Thomas was wrong in accepting the hospitality; or, simply,
c) ProPublica believes Mr Thomas was wrong not to have disclosed the hospitality, even if accepting it was unobjectionable.
The seminar made reference to financial declarations. But is an AO-10 disclosure a financial declaration? What is the legal mischief that AO-10 is aimed at (its ratione legis)? It is a declaration of the extent to which a person in the administration of justice has been the recipient of hospitality or gifts bestowed by an outside party. The value of those gifts is, I take it, crucial in triggering the requirement or otherwise to disclose (assuming any such requirement exists at all). But, is the declarant required to adhibit a value to the gift received?
If a value is to be ascribed to the gift received by the declarant, and even if it is not, what, then, is the purpose of the AO-10 declaration? As far as I can see, it is purely a matter of information, telling the Justice Department what collateral interests a member of the administration of justice entertains whilst occupying a position in that administration. Further than that, its purpose is, as yet, unclear.
Is there a prohibition, for instance, against accepting hospitality from friends who also happen to be munificent benefactors of the Republican or of any other political party? I assume that there is no prohibition but that, by implication, ProPublica nonetheless takes the view that the American public has a justifiable right to know what associations and affiliations judges of their Supreme Court do have and, furthermore, what monetary influence such associations could possibly bring to bear upon those who decide matters of constitutionality. For example, had Justice Thomas accepted such hospitality at the hands of ISIS, there would have by now been an outcry so loud that it could be heard clear across the Atlantic Ocean. If, as seems to be the case, Mr Thomas views any objection to how he has conducted himself as what I might term piffling, perhaps he might at some stage be invited to opine on where, on a scale ranging from the GOP to ISIS, Kanye West or the French National Front, he would deem such an objection to cease being piffling and start being all too serious.
I am a member of the public. According to the name of your organisation, I am therefore a member of the body of people for whose behoof you publish your reports. However, I confess that I languish somewhat in a position of not clearly comprehending the reasons why you have published these reports. At the present time, I see three possible consequences emerging:
· The first, and worst, of these is that Justice Thomas broke the law, knowingly and intentionally, in order to draw a veil over an association from which he wished to avert all attention. If he broke the law, the law must take its consequences.
· The second of these is that, if Justice Thomas did not break the law, he’s nonetheless guilty of a lack of judgement in considering the matters in his private life that may be of consequence in the exercise by him of his office as a judge of the Supreme Court. If he is not guilty of a breach of the law, then this indiscretion may yet have its consequences.
· The third consequence is that Justice Thomas neither broke the law nor can be deemed to have been guilty of any indiscretion. In this third case, your report is, I’m afraid to say, simply a smear.
If deemed a smear and naught else, your assiduous journalism could transpire to be simply one more shot in the mudslinging match that American politics is fast becoming. That would be a great shame, because you have uncovered some astonishing facts: until they point to a ground for censure, however, a smear is what, I fear, they will remain.
Before closing, one further observation. The prime defence, if defence it is and defence be needed, raised thus far by Mr Crow and Mr Thomas is that they are dear friends. If any aspersions are to be cast, then one that I would be casting is: what, then, is a dear friend? How did this dear friendship come about, and flourish to a financial tune exceeding half a million dollars? Out of interest, if neither Mr Crow nor any of his other guests (who, presumably, are likewise friends of his) discusses matters of business interest during their encounters (and Mr Crow avows to making sure that this is not done, so says he), what, aside from the weather, do they then discuss? I should be interested to have a random summary of the topics they cover and that have nothing in the slightest to do with the businesses they are involved in.
In the event that only the third conclusion above remains, I am left sympathising with ProPublica: after all, what else should ProPublica have done with the information it had gleaned? Buried it? No, not bury it; but I await with bated breath to learn where your revelations will lead to. I wish you good fortune.
ProPublica is a publication worthy of right-minded citizens’ attention. Their startling investigative journalism has revealed and highlighted many cases of injustice and wrong needing putting right. On them have been conferred many Pulitzer prizes for outstanding reporting. Their journalism is to my own mind assiduous and fair. They invite subscribers to their newsletters.
I need a crime
ProPublica has stated as follows in its reporting of the supposed indiscretions:
Through his largesse, Crow has gained a unique form of access, spending days in private with one of the most powerful people in the country. By accepting the trips, Thomas has broken long-standing norms for judges’ conduct, ethics experts and four current or retired federal judges said.
I think there is no question but that Mr Crow spent days in private with a powerful man. The question is whether it can be proved that he benefited unduly from that unique form of access — it’s a high bar to even Fosbury flop over. Notwithstanding, it is true that ethics has less to do with what constitutes a legal wrong and much more to do with conducting oneself in such a manner as to rule out so much as a suspicion of wrongdoing. ProPublica spoke to ethics experts and other members of the judiciary, past and present, to confirm the norms for judges’ conduct. As a member of the legal profession myself, I have no doubt as to their conclusion that he broke those norms, long-standing or otherwise. Likewise, as a member of the legal profession, I do have doubt when they fail to point to a distinct breach of the law as as a result of his breach of norms.
ProPublica stops short of casting aspersions as a result of what it has uncovered. It leaves the aspersions, instead, hanging in the air, with the vocabulary it selects in its reporting, incidentally viewed by the Wall Street Journal as tending to the exaggerated or hyperbolic, a view I share but which does not impugn my belief in their veracity.
Nor does ProPublica make any assertion as to what should be done about the breaches of norms it has identified. Perhaps that might be because nothing can be done. Justice Thomas is by now no uncontroversial figure: he was instrumental in overturning Roe v. Wade last year and in other headline-worthy cases before and since. He courts controversy in court and, in an article last year, I questioned whether he was courting disaster, in ruling against gun laws as being unconstitutional. He has earned a name for himself among neo-liberals, one it is tempting to pursue, assuredly with these accusations. But, has he earned censure for failing to disclose his holidays? Of that, he is perhaps not the best judge. But, then, who is?
The story points, at the very least and to parody Hamlet, to something rotten in the state of Clarence Thomas: if he should have disclosed, he’s been naughty — a bad egg; a bad, rotten egg. But can you get a bad egg off the Supreme Court?
I truly wish ProPublica well in pursuing this story. Because it is shocking. Because it is seminal. Because it is important. Yet, I feel a little like the forlorn Pontius Pilate in the musical Jesus Christ Superstar as the crowd bays for Jesus’ crucifixion: I need a crime.