Clarence Thomas, credibility and consequences

Clarence Thomas could be looking at criminal exposure if he signed his annual financial disclosure form under a jurat, swearing that he accurately reported every gift or property transaction received during the year(s) when, reportedly, he did not.

Title 18 Section 1001 would be the Federal statute prosecutors could use to indict the Supreme Court justice for falsifying his disclosure forms, should they be so inclined.

Thomas now claims he was told by colleagues he didn’t have to report luxury travel that he and his wife received from the billionaire corporate executive and major Republican political donor Harlan Crow. Apparently, Justice Thomas did report gifts received from Mr. Crow on earlier reports filed years ago, but after receiving some advice from an unknown advisor felt that he no longer was required to do so.

That is a whopper that strains credulity — and, in my opinion, credibility: his. 

If a federal agent loses his or her credibility, he or she will likely be banned from testifying in court as a result of what is called a “Henthorne/Giglio” problem, resulting from court cases by those names. Prosecutors won’t put an agent on the stand if the agent can be attacked in court from an integrity/credibility perspective — because it could jeopardize the outcome of the case. Juries don’t like agents with integrity/credibility problems. 

If a federal agent has a Henthorne problem, that agent will be in danger of losing their job because pretty much the point of doing a Federal law enforcement agent’s job is to investigate and put crooks in jail, which necessarily means going through the court process.

So then, what happens when the person who runs the court has the credibility/integrity problem?

Even more concerning, what happens when one of the handful of people who oversee the entire American judiciary has the integrity/credibility issue?

Should that person keep his job?

Supreme Court justices are the last call in our system of jurisprudence. Their final legal rulings impact millions of Americans every day. They must live lives far beyond even minor reproach.

Pro Publica laid out a vacation travel scenario that Mr. Crow provided Justice and Mrs. Thomas that included a luxury tour of Indonesian islands by jet and yacht. Pro Publica estimates that such a vacation fantasy trip made real would cost the average tourist approximately $500,000. Mr. Thomas did not report this vacation gift on his disclosure form as required.

Justice Thomas cavalierly claims he does not have to report such a gift and that the source of such largesse — Mr. Crow — has never appeared before his court nor have any legal issues concerning Mr. Crow or his business been the subject of SCOTUS scrutiny.

But Pro Publica has also reported that Mr. Crow purchased property from Justice Thomas — including the house where Thomas’s mother lives — and that Thomas failed to disclose that transaction as required.

There are also questions about other Crow-sponsored vacations — in the Adirondacks and elsewhere — about gifts to Thomas and about Thomas’s apparent use of Crow’s private jets.

The look certainly isn’t good.

Mr. Crow, besides being a billionaire corporate executive in his own right, is one of the largest Republican party candidate contributors.

Justice Thomas voted with the conservative majority in the controversial Citizens United ruling that found that corporations are people in the eyes of the law and therefore cannot be limited in their monetary political contributions, given that such contributions are a form of speech and the Constitution places no limits on freedom of speech with regard to the American people.

Pro Publica printed a photo of a portrait commissioned by Crow showing Thomas kicking back with a cigar as Crow and other luminaries of the right-wing elite — like Leonard Leo — gather around.

Even if the topic of corporate political contributions really never did come up between the various right-wing elites and Justice Thomas while they were chumming together on the yacht or around the campfire, even if they never discussed court business, and even if all the free stuff never really influenced Thomas’s decisions, the real issue — at this point — is would anyone believe the denials?

Justice Thomas has an integrity/credibility problem.

The problem could be much worse if the documents Thomas filed really do not comply with the law.

And if DOJ is hesitant to prosecute a Supreme Court justice, then should Thomas not be treated the same way a federal law enforcement agent with a credibility issue is treated?

If Justice Thomas won’t fix the situation, his colleagues on the court — particularly Chief Justice Roberts — must.

There should be consequences for people in powerful positions that demand the public trust.

Martin J. Sheil is a retired supervisory agent for IRS Criminal Investigation with 30 years experience, including service as coordinator of the Organized Crime Drug Enforcement Task Force (OCDETF) for the Gulf Coast Region, Branch Chief for the North Texas District (Dallas), Special Agent in Charge for the South Texas District (San Antonio) and as Director of IRS CI Asset Forfeiture in Washington, D.C.