Senate Democrats demand special counsel to investigate Clarence Thomas

WASHINGTON (CN) — A pair of top Senate Democrats have asked the Justice Department to name a special counsel to investigate Supreme Court Justice Clarence Thomas for neglecting to disclose forgiven debt and gifts from wealthy conservative benefactors on legally-mandated financial reports.

In a letter to Attorney General Merrick Garland, made public Tuesday, Rhode Island Senator Sheldon Whitehouse and Oregon Senator Ron Wyden said evidence suggests Thomas not only willfully violated federal ethics and false-statement laws but also may have run afoul with federal tax regulations.

“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,” Whitehouse and Wyden wrote. “Presented with opportunities to resolve questions about his conduct, Justice Thomas has maintained a suspicious silence.”

Congressional Democrats have long sounded the alarm about what they see as rampant ethical misconduct at the Supreme Court, concerns raised last year amid revelations that Thomas had failed to report lavish vacations and other gifts paid for by conservative megadonor Harlan Crow. In recent months, lawmakers probing the high court have issued subpoenas to central players and brought forward legislation aimed at forcing the justices to adopt an enforceable code of ethical conduct.

But a formal Justice Department investigation into a sitting Supreme Court justice would be an even more drastic step in Democrats’ efforts to crack down on ethical malfeasance.

Whitehouse and Wyden argued such a move is justified.

“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,” they told Garland. “The breadth of the omissions uncovered to date, and the serious possibility of additional tax fraud and false statement violation by Justice Thomas and his associates, warrant the appointment of a Special Counsel to investigate this misconduct.”

The lawmakers cited reports that Thomas failed to report on financial disclosure documents more than $267,000 in forgiven debt — money the justice borrowed from wealthy friend Anthony Welters to buy a motor coach. They also pointed to Thomas’ unreported gifts from Crow and other benefactors, some of which have since appeared in the justice’s amended disclosure statements.

This conduct, Whitehouse and Wyden said, may have run afoul of the Ethics in Government Act. Thomas’ failure to disclose these gifts, they added, may also implicate federal laws against making false statements and could raise the possibility of tax law violations by Crow or others who may have failed to appropriately report the gifts on tax filings.

The Justice Department, which often litigates before the Supreme Court, may be hesitant to “offend” a member of the bench by undertaking its own investigation, the Democrats told Garland. A special counsel, they contended, would relieve this pressure by keeping a probe of Thomas and the agency’s interests separate.

Such an investigation would also serve the public interest, Whitehouse and Wyden said.

“The public must have confidence that the judiciary and the Department of Justice execute their responsibilities fairly, impartially and without respect to political expedience or partisan interests,” they wrote.

A spokesperson for the Justice Department declined to comment. But experts said a special counsel investigation was a long time coming.

“Better late than never,” said Gabe Roth, executive director of reform-minded Supreme Court advocacy group Fix the Court. Roth has argued since last year that Garland should appoint a special counsel to investigate Thomas’ ethical lapses.

“It’s been clear for months that the judiciary is not going to do anything within its powers to hold Justice Thomas to account, which means outside resources from our government’s most able investigators need to be brought in," he said.

During a news conference Tuesday, Senate Majority Leader Chuck Schumer did not take a direct stance on the special counsel request, telling Courthouse News that Whitehouse and other Senate Democrats had “a variety of ways” of addressing ethics issues at the Supreme Court.

“The bottom line is that the Supreme Court is way off the deep end, in so many different ways,” Schumer said, adding that he was looking at “all options.”

Democrats’ plea to the Justice Department comes just weeks after a Senate Judiciary Committee investigation uncovered three previously undisclosed trips taken by Thomas on Crow’s private jet between 2017 and 2021. The justice, who had just recently amended his 2019 financial disclosure documents to reflect unreported gifts, had not included the trio of private jet trips in his revisions.

The special counsel request also comes after Senate Republicans stymied an effort to pass Supreme Court ethics legislation in the upper chamber. GOP lawmakers last month blocked an attempt by Democrats to pass Whitehouse’s Supreme Court Ethics, Recusal and Transparency Act via unanimous consent.

The Rhode Island senator and other Democrats have resolved to keep fighting for a legislative solution to ethical malfeasance at the high court.

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