April 14, 2023

Whitehouse and Johnson Request Referral of Justice Thomas to Attorney General

Members urge investigation into Justice Thomas’s potential violations of the Ethics in Government Act. Whitehouse and Johnson’s SCERT Act would require SCOTUS to adopt stricter disclosure rules and enact a process for investigating misconduct at SCOTUS

Washington, DC – Senator Sheldon Whitehouse (D-RI) and Representative Hank Johnson (D-GA), today sent a letter calling on the Judicial Conference to refer Supreme Court Justice Clarence Thomas to the U.S. Attorney General for potential violations of the Ethics in Government Act 1978.  The members sent this letter one day after a second ProPublica report exposed that Justice Thomas failed to disclose the sale of properties to billionaire Harlan Crow.  The letter follows a request from the Campaign Legal Center urging the Judicial Conference to refer Justice Thomas to the Attorney General for failure to disclose luxury trips funded by Crow.

“Justice Thomas reported his interest in [the Savannah] properties when he was an official in the George H.W. Bush administration, and continued to report his interest during his tenure on the Supreme Court.  However, when Crow bought those properties in 2014—potentially paying well over market value—Justice Thomas failed to report the sale, in an apparent direct violation of 5 U.S.C. § 13104(a)(5),” wrote the members.  

“Justice Thomas’s failure to report this transaction is part of an apparent pattern of noncompliance with disclosure requirements . . . .  [T]here is at least reasonable cause to believe that Justice Thomas intentionally disregarded the disclosure requirement to report the sale of his interest in the Savannah properties in an attempt to hide the extent of his financial relationship with Crow,” the members continued.

Earlier today, the New York Times Editorial Board released an editorial endorsing Whitehouse’s and Johnson’s Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which was reintroduced in February. 

The SCERT Act is comprehensive legislation that would create a much-needed process for investigating misconduct at the Supreme Court, strengthen recusal standards for judges and disclosure rules for special interests trying to influence the courts, improve disclosure of gifts and travel for judges, and mandate the creation of a binding code of ethics.  The SCERT Act would also require the Supreme Court to adopt disclosure rules for gifts, travel, and income that are at least as rigorous as ethics rules for members of Congress.  

Late last month, in response to Whitehouse, the Judicial Conference released updated financial disclosure rules that resolved key ambiguities related to the personal hospitality exemption addressed in the SCERT Act—the very exemption Justice Thomas and others appear to have exploited.  The SCERT Act would also strengthen recusal requirements when parties who have provided gifts to justices appear before the Court, and require parties to disclose those gifts to the Court.

Last spring, Whitehouse and Johnson wrote to Chief Justice Roberts requesting that he ensure that Justice Thomas recuse himself from cases involving his wife’s activities related to the 2020 election and the January 6 attack on the U.S. Capitol.  Thomas has refused to recuse himself, or acknowledge the possible conflict of interest, in multiple cases.  Chief Justice Roberts has taken no known action on this matter to date.

Whitehouse and Johnson have also engaged in a series of correspondence with the Supreme Court regarding an outside influence campaign – known as Operation Higher Court – exposed by reporting in Politico and the New York Times.  A right-wing religious group, Faith and Action, targeted Republican-appointed justices with lavish gifts from wealthy donors, and allegedly gained advanced knowledge of the Court’s decision in a key case. 

Today’s letter is available here.

Meaghan McCabe,(202) 224-2921

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