Thread by @SenWhitehouse

“Oh, what a tangled web we weave, when first we practice to deceive.” — Walter Scott, relevant for Clarence Thomas. 

Oh, what a saga it is. 🧵

It begins with Harlan-Crow-to-Clarence-Thomas freebie-yacht-and-jet-travel Round One. As Judge Wolf testified in my subcommittee, this was buried in the Judicial Conference a decade ago, with no public findings or report.

Thomas did not get the message, and kept taking the freebies, which led to Crow-to-Thomas yacht-and-jet-freebies-PLUS*, Round Two, exposed thanks to Pulitzer-Prize-winning reporting by ProPublica.

[*PLUS, as you recall, included free rent from Crow to his mother, free tuition from Crow to his grandnephew, payments directed by Crow pal Leonard Leo to his spouse (“another $25K … No mention of Ginni“), and who knows what else.]

Thomas’s response: Nothing to see here, folks, just “personal hospitality” from a “dearest friend” — who just happens to be deeply involved with Court-fixer Leonard Leo and right-wing efforts to influence the Supreme Court.

The law is that the Judicial Conference must refer to theAttorney General for investigation any genuine question of “willful” disclosure failure. It is not clear why that was not done in Round One; Round Two so far remains within the Conference.

While this went on, I asked the Judicial Conference to review the “Scalia Trick”— orchestrating a “personal invitation” from a resort owner for a free vacation and not disclosing it because it was “personal hospitality.” They blew that trick up.

Doing so, the Conference called it a “clarification” of its guidance on existing law, meaning past erroneous filings would have to be cleaned up. Thomas’s lawyers jumped in to say it was a “new rule,” so he’d only need to comply with it prospectively.

The question whether they meant “clarification” when they said “clarification” is pending now before the Judicial Conference, along with the question of a “willfulness“ referral of Thomas to the Attorney General.

This provides some context for Thomas’s recent effort to clean up some omissions from his 2019 filing. It does not explain why he failed to disclose and repair the omissions the Senate Judiciary Committee just revealed from 2017, 2019 and 2021.

It’s not clear how candid Thomas has been with the Judicial Conference about what gifts he received but did not disclose, and why. One of the recurring problems at the Court has been no orderly process for any factfinding.

It also does not explain Thomas’s incomplete compliance. These were all gifts from Harlan Crow, so why disclose some, but not others? It has long been clear that travel gifts must be disclosed (they were never personal hospitality) so why not disclose the travel gifts?

It is hard to find a logical through-line as to what Thomas has and has not disclosed. There is still no complete factual picture about Round One or Round Two of Crow-to-Thomas, let alone the entire billionaire gifts program for Thomas and Alito.

The best way through this “tangled web” is a referral to the Attorney General, per the law. The AG has the resources to investigate properly, is not compromised by judicial peer pressure, and can look at tax and false statements aspects.

Remember: disclosure law compliance is not adjudicative; it is administrative — justices are like anyone else in government. If they break the law, it’s no answer to say “But I’m a justice.” For this, a justice is a government employee, who must obey the law.