Clarence Thomas (YouTube/Library of Congress)
Senate Democrats want the Justice Department to launch a formal criminal investigation into Supreme Court Justice Clarence Thomas.
In a letter dated July 3, and released on Tuesday, Rhode Island Sen. Sheldon Whitehouse and Oregon Sen. Ron Wyden asked Attorney General Merrick Garland to appoint a special counsel over a series of financial ethics scandals that have dogged Thomas for years.
Since 2004, public reporting has documented that Thomas was the top recipient of gifts among his colleagues on the nation’s highest bench. For years thereafter, Thomas stopped disclosing such gifts. In 2011, Thomas’ practice of serially failing to disclose such gifts — along with his wife’s income — was reported on and prompted the justice to amend several years worth of disclosure reports. Then, in 2023, reports about Thomas’ failed gift disclosures cropped up again.
In their letter and attached exhibits, Whitehouse and Wyden document a series of “likely undisclosed gifts and income” dating back to 2003. But, the senators say, there may be far more to find.
“The scale of the potential ethics violations by Justice Thomas, and the willful pattern of disregard for ethics laws, exceeds the conduct of other government officials investigated by the Department of Justice for similar violations,” the letter reads. “The breadth of the omissions uncovered to date, and the serious possibility of additional tax fraud and false statement violations by Justice Thomas and his associates, warrant the appointment of a Special Counsel to investigate this misconduct.”
The timing of the referral may upturn some eyebrows.
While Thomas’ current ethics scandals have drip-dripped into public view, enraging some people for well over a year, the special counsel request came just two days after Thomas’ scathing concurrence to the high court’s opinion granting Donald Trump presidential immunity. That concurrence quickly formed the basis for Trump’s lawyers to begin anew their efforts to kick special counsel Jack Smith off the Mar-a-Lago case. In turn, the judge overseeing the documents case all but immediately pumped the brakes on several pretrial proceedings.
A wide array of critics — including Democrats, nonpartisan ethics groups, law professors, and commentators — have expressed concerns about the gifts received by Thomas, as well as the justice’s concomitant aversion to transparency over such gifts. The scandals were given life anew when an April 2023 exposé by nonprofit news outlet ProPublica revealed that Thomas and his wife had, for decades, taken numerous undisclosed trips around the world on a “superyacht” owned by Dallas billionaire Republican donor Harlan Crow.
Once the latest ethics firestorm began, the Senate Judiciary Committee has had Thomas in its sights. An investigation by the committee since turned up additional details, the letter alleges.
“Harlan Crow has donated to Justice Thomas numerous gifts over the past twenty years, almost none of which were disclosed by Justice Thomas as the Ethics in Government Act requires,” the letter goes on. “These gifts include multiple instances of free private jet travel, yacht travel, and lodging, as well as gifts of tuition for Justice Thomas’s grandnephew, and (through intermediate entities) real estate transactions, home renovations, and free rent for Justice Thomas’s mother, all of which Justice Thomas failed to disclose.”
The heart of the complaint is an allegation that Thomas has repeatedly run afoul of the Ethics in Government Act.
“It is a crime ‘to knowingly and willfully … fail to file or report’ such information,” Whitehouse and Wyden write. “We do not make this request lightly. The evidence assembled thus far plainly suggests that Justice Thomas has committed numerous willful violations of federal ethics and false-statement laws.”
Thomas is far and away the largest recipient of gifts in the history of the nation’s high court, a June report by judicial reform watchdog Fix the Court noted in an extensive report on Supreme Court gift receipts and disclosures. In sum, the group found the total value of all documented and likely gifts received by Supreme Court justices since 1981 totals $6.59 million. The total value of documented and likely gifts received by Thomas eclipses $5.87 million, the group said.
More Law&Crime coverage: ‘Nearly $4.2 million in gifts and even that wasn’t enough’: Justice Thomas took 3 undisclosed trips with GOP billionaire on luxury private jet, new documents reveal
Whitehouse and Wyden say Crow is not alone among wealthy right-wingers who have contributed to Thomas’ coffers. The letter alleges gifts given by billionaires Paul Anthony Novelly, the late Wayne Huizenga, and David Sokol, as well as income to Thomas’ wife directed by longtime conservative judicial movement activist Leonard Leo.
The letter suggests this extensive gift-giving might implicate additional legal violations — by both Thomas and his wealthy patrons.
“In addition to possible disclosure violations under the Ethics in Government Act, each of the undisclosed transactions discussed above implicates federal laws against making false statements to the government,” the letter goes on. “Moreover, these gifts raise the possibility of related tax violations by Justice Thomas’s benefactors if they failed to report or pay any required gift tax.”
The letter also takes note of a $267,000 loan Thomas received from wealthy businessman Anthony Welters. Some amount of that loan, used to buy a luxury RV, was ultimately forgiven. Whitehouse and Wyden say that may mean Thomas himself violated tax laws.
“Documents obtained by the Senate Finance Committee indicate that no principal was ever repaid on the loan and that Justice Thomas only made interest payments on the loan prior to all payments ceasing on the loan,” the letter continues. “Forgiven or discharged debt is taxable income, and the Ethics in Government Act requires justices to disclose any ‘income from discharge of indebtedness.’ Justice Thomas did not report any such forgiveness as income on his financial disclosure report covering the year 2008, or for any other year.”
The senators say that Thomas’ “potential misconduct” is far in excess of past instances of misconduct that have drawn scrutiny from federal law enforcement. Several examples are cited in the letter which, the senators argue, make the appointment of a special counsel justified under DOJ regulations and “in the public interest.”
“No government official should be above the law,” the Whitehouse-Wyden letter concludes. “Supreme Court justices are properly expected to obey laws designed to prevent conflicts of interest and the appearance of impropriety and to comply with the federal tax code. We therefore request that you appoint a Special Counsel authorized to investigate potential criminal violations by Justice Thomas under the disclosure, false statement, and tax laws; pursue leads of related criminal violations by donors, lenders, and intermediate corporate entities; and determine whether any such loans and gifts were provided pursuant to a coordinated enterprise or plan.”
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