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Call for DOJ to Investigate Clarence Thomas
By Andrew Kreig
Originally published at the
Justice Integrity Project
Twenty Democratic members of Congress wrote federal judicial authorities on Sept. 29 to request a formal Justice Department probe of Supreme Court Associate Justice Clarence Thomas for long-term failures to disclose junkets, other gifts and income.
A coalition of both black and white Democrats told the Judicial Conference of the United States that it is required by law to seek a Justice Department investigation of the new allegations against Thomas and his wife, the Republican political activist Virginia Lamp Thomas. Most of the allegations became public this year. They involve claims of undisclosed gifts, junkets, income and other conflicts, along with the justice's failure to report his wife's earnings on annual judicial disclosure forms that he signed under oath.
“Due to the simplicity of the disclosure requirements, along with Justice Thomas’s high level of legal training and experience,” said the congressional letter to the conference secretary James C. Duff, “it is reasonable to infer that his failure to disclose his wife’s income for two decades was willful, and the Judicial Conference has a non-discretionary duty to refer this case to the Department of Justice.” To be sure, the 20 signatures are relatively few from a 435-member, Republican-run House. Their names are here. Still, the letter marks a significant step in clarifying a potential criminal component to what Thomas defenders and the nation's timid watchdog institutions often trivialize as either oversights by a busy public servant or potential “ethics” issues that have scant remedy as a practical matter.
Our Justice Integrity Project, among a handful of watchdog groups, has long focused upon seemingly flagrant abuses throughout the Thomas era, which I observed first-hand at the outset by attending his 1991 confirmation hearings. The hearings reached a dramatic point 20 years ago in early October as Thomas faced sexual harassment claims by law professor Anita Hill, who had been a Thomas subordinate at two different federal agencies during the early 1980s.
In February of this year, I hosted Common Cause Vice President Mary Boyle on my “MTL Washington Update” radio show just after her group disclosed that Thomas had been hiding his wife’s income. Last week, our radio audience heard also from retired federal judge Lillian McEwen, a former Thomas lover from the early 1980s and author of the compelling memoir, DC Unmasked and Undressed, published earlier this year. She said -- based on her experience hearing Thomas discuss “Long Dong Silver” and other shared experiences -- that he apparently perjured himself during his confirmation hearings when he denied under oath using the kind of pornography that Hill swore he had described.
Characteristically, Thomas has largely remained silent about the new allegations, aside from disclosing that he promptly corrected his financial statements after Common Cause exposed the problem via a Los Angeles Times article in late January. We’ll update today's report with any comment we obtain from him or Duff's Administrative Office. That office implements decisions by the Judicial Conference of the United States, which is chaired by Supreme Court Chief Justice John Roberts, a Republican colleague of Thomas.
Significantly, the congressional letter-signers demand an open-ended DOJ investigation, unlike the forgive-and-forget stance that most in Washington accord to the powerful. “Based upon the multiple public reports,” the letter said, “Justice Thomas’s actions may constitute a willful failure to disclose, which would warrant a referral by the Judicial Conference to the Department of Justice, so that appropriate civil or criminal actions can be taken.” [My emphasis added.]
Many reasons exist for those in Washington's power structure to ignore each others’ sexual and financial scandals, especially in this instance. For one, Thomas has influential friends who orchestrated his appointment. Also, he is the court’s only African-American justice, a status he uses to intimidate critics. For example, he denounced Hill and inquiring Senators alike at his hearing for what he described as a “high-tech lynching.”
That's not all. The confirmation was enabled also by vast, secret donations from private individuals who wanted Thomas on the court and who weren't shy about their methods. Part of this secret support included a cranked-up grass-roots campaign that included TV ads and bused-in black evangelicals targeting then-Judiciary Committee Chairman Joe Biden (D-DE) and other Democrats, some of whom had their own staff-harassment and similar sex scandals to hide. There’s no point being coy at this point with the stakes so high. Read The Senator: My 10 Years with Ted Kennedy, a 1992 biography of the late Judiciary Democrat by his former chief of staff, Richard Burke. Burke describes sex and drug scandals, and lots of them. And there’s scant reason for those living in Washington to believe Kennedy was alone in such behavior.
Thus, our leaders rushed through the Thomas hearing without allowing on camera the most effective independent testimony that could have vindicated Hill. This enabled his confirmation, albeit by a 52-48 vote that represents the most negative votes in U.S. history for any Supreme Court justice. The White House photo above typifies the bipartisan fakery involved even in what might be expected to serve as a transparent occasion. Thomas, with wife gazing on, is shown at right taking a fake oath from Democratic-nominated Justice Byron White on Oct. 18, 1991. The ostensible elevation of Thomas to the court effectively ended simmering questions. Chief Justice William Rehnquist, unavailable Oct. 18 because of his wife's death, administered the real oath on Oct. 23 in his office, away from the cameras and other public view.
Imagine for a moment a different scenario: Suppose the Biden-led Judiciary Committee had delayed the hearing to allow more investigation of the allegations against Thomas? Suppose the senators had informed the public with more testimony? What might have happened if, for example, if they had encouraged their counsel Lillian McEwen to step forward and describe her experiences. She had been a brilliant former counsel to the committee in the early 1980s when it was chaired also by Biden. Later, she became a law professor before becoming a federal judge with Securities and Exchange Commission.
Suppose she had testified that she accompanied Thomas to New York’s Plato’s Retreat sex club? She described that, and lots more, in her compelling memoir. But that’s not what Biden and his colleagues wanted. Furthermore, the Senate avoids post-confirmation scrutiny of judges suspected of perjury under a constitutional separation of powers rationale. When it’s over it’s over, right?
Even so, commoners unschooled in the law’s fine points might get confused: Do Senators truly care about good government if they let nominees perjure themselves? Should those who capture judgeships by such chicanery also bask in lifetime appointments with no real oversight for their lavish gifts and family jobs, especially if the facts are hidden to litigants and everyone else with misleading disclosure statements? On a routine basis, Thomas and his colleagues piously imprison others who similarly mis-state or overlook such matters on a document, or even verbally to a federal official. Why should they be exempt themselves?
Let's look ahead: To commemorate the twentieth anniversary of the Thomas confirmation hearings over the next few weeks, we can expect many accounts of his career. Some will be enlivened with nasty comments about him from a few academic, feminist or political critics. But Thomas and his allies can shrug that off. News reports suggest that real estate tycoon Harlan Crow is the kind of friend who lets Thomas and his wife relax in luxury, whether at a mansion or the iconic Bohemian Grove. At the same time, Thomas has fostered a politically useful image of a VIP who despises Ivy League academics and chills out with workers at the court cafeteria and with children who lap up his inspirational talks at their schools. In sum, the odds are overwhelming that Washington’s thought-leaders will raise a few eyebrows over allegations against him and ultimately will close ranks with one of their own, as usual, on a bipartisan basis. Big-time Democrats and their backers, like Republicans, have important business before the Supreme Court.
Still, keep an eye on the congressional letter sent Sept. 29, 2011 to Duff at the administrative office at the Judicial Conference.
Despite the name that the congressional signers put at the top of the page, their letter is probably addressed to a different court. Ordinarily, that tribunal's members are too distracted and too disrespected to have much impact. Even so, that court is potentially more powerful than the one run by Chief Justice Roberts and his colleagues.
It's called the court of public opinion.
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