Thread by @SenWhitehouse

Yesterday, @RonWyden and I announced that we have asked the Attorney General to designate a Special Counsel to look into the mess surrounding billionaire gifts to Justice Clarence Thomas for violations of law.

Why did we do this? 🧵

First, there’s no fact-finding process for ethics complaints against Supreme Court Justices — the only people I know of in all of government who won’t allow basic factfinding about their conduct.

Internal reviews of Thomas’s disclosure violations by the Judicial Conference have produced no public report or determination, nor any referral (required by law) to the Attorney General when there’s reason to believe misfilings were “willful.”

In that “willfulness” regard, Thomas is a repeat offender at misfiling, but has never been held to account. The judicial branch is not effectual at investigating him, and has no power to enforce criminal sanctions or explore tax and false statement violations.

Second, when we asked basic questions via congressional oversight about how Thomas’s $267,000 loan was repaid, we got blown off by his lawyers. When you can’t get a straight answer out of someone, that’s usually a sign.

We were told only that the terms of the $267,000 loan were “satisfied,” with no explanation of how that is possible with no principal on the loan ever repaid. When we asked for clarification, we were told we’d get no more information.

Plus, Senate Republicans repeatedly and publicly stated they would block enforcement of any subpoenas we may pursue, by filibustering any enforcement proceedings on the Senate floor. So our congressional investigative remedies were blocked.

Third, there’s no consistency to Thomas’s filings: he discloses info, then stops; he discloses some gifts, not others; he amends forms for “inadvertent” error, but not all errors; he mixes up travel with hospitality gifts — with lawyers supposedly helping.

There are three potential crimes here. One is “knowing and willful” disclosure law violation, which is a Class A federal misdemeanor with fines up to $100,000 and imprisonment up to one year, per count.

Another potential crime is filing a false statement, a felony under 18 USC 1001 with up to five years imprisonment, or a misdemeanor false statement by an official under 18 USC 1018, with imprisonment up to one year.

Federal executive and legislative branch officials have been prosecuted and pled guilty for failure to disclose far lesser gifts than Thomas has accepted, with their disclosure misfilings charged as false statement violations.

Last are the potential tax offenses for failing to file proper gift tax and income tax returns and pay tax that is due. Gifts over $17,000 require gift tax filings; forgiven loans are taxable income; and income must be disclosed and taxes paid.

The tax investigation we request would include Thomas’s associates in the gift-giving and loan-forgiving, so as to make sure there was lawful tax compliance on both sides of the various transactions.

Consider this: perhaps Thomas didn’t report the forgiven principal as income, a tax violation; or perhaps he did, but did not disclose that income under the disclosure law, which starts to look pretty willful. It’d have to be one or the other.

Or consider this: someone else came to his rescue and paid off the loan principal for Thomas, such that the loan terms were “satisfied,” but the gifts from the rescuer were not reported. That’s a violation also.

We also asked that the Special Counsel be authorized to look into whether these gifts and income were part of a coordinated gifts program; whether there were more gifts than those we know about; and whether undisclosed payments also went to Mrs. Thomas as gifts.

Before prosecutors open any investigation against a public official, they must have “predication” — solid indications to suspect a possible violation of law. No predication; no investigation. Here there is predication galore.

Of all the people who should not hold themselves above the law, it’s justices of the Supreme Court — and they should particularly not hold themselves above the law’s foundational process of honest fact-finding.

The AG can fill that gap.