April 18, 2023

The Scheme 21: “As Friends Do”

Mr. President, I am here for now the 21st in my series of speeches about the scheme to capture and control our Supreme Court, a scheme to which rightwing special interests have devoted hundreds of millions of dark money dollars. The ingredients in this noxious cocktail are creepy rightwing billionaires, phony front groups, amenable justices, large sums of money, and secrecy.

This month, we have gotten a whole new look at how these ingredients mix. According to extraordinary reporting by ProPublica, for more than 20 years, Justice Clarence Thomas has accepted luxury trips, virtually every year, from billionaire Harlan Crow without disclosing them. Here is how ProPublica described it:

“[Thomas] has vacationed on Crow’s superyacht around the globe. He flies on Crow’s Bombardier Global 5000 jet. He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and to Crow’s sprawling ranch in East Texas. And Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks.”

 One of those trips has been valued at more than $500,000. We have heard from civil servants who have to report a gift of $5. This Justice received a gift of a trip that they valued at $500,000. It was a trip to Indonesia on Crow’s private jet, followed by, and I quote here, ‘‘nine days of island-hopping . . . on a superyacht staffed by a coterie of attendants, and a private chef.’’ And that is just one excursion. No telling how many others there were.

None of this was disclosed. The supposed rationale was that it was all ‘‘personal hospitality.’’ So let’s set aside for one second the question of whether this actually was personal hospitality. Let’s presume that there was personal hospitality here somewhere. What that overlooks is the problem of the personal hospitality exemption, which covers exemption from disclosure of ‘‘food, lodging, or entertainment received as personal hospitality of an individual.’’ Food, lodging, or entertainment—not transportation, not travel, not trips on Harlan Crow’s private jet.

ProPublica was able to identify multiple trips that Thomas took on Crow’s jet, and each one of those trips seems to be a slam dunk violation of this provision—not food, not lodging, not entertainment. Transportation.

It does not stop there. Additional reporting by ProPublica revealed more of Crow’s undisclosed generosity. In 2014, Crow purchased from Thomas and his relatives three properties in Georgia, including the home where Thomas’s mother lives. There seemed to be more collateral gifts in the form of renovations and an agreement that Thomas’s mother would live there rent-free for the rest of her life. There is much more to learn about this transaction, but back to the disclosure, here is what the law requires for property disclosures.

It requires the disclosure of any purchase, sale, or exchange during the preceding calendar year which exceeds $1,000 in real property, other than property used solely as a personal residence of the reporting individual. If it is not your home, if it is any other real property, and if it is worth more than $1,000, the law requires that it be reported.

Thomas disclosed none of this on the annual disclosure forms required by law. This law applies across the government. This isn’t something special for the Supreme Court. But transparency is especially important for judges, who must recuse themselves from cases if there is even an appearance of impropriety.

Purchasing Thomas’s property and offering him free international vacations weren’t the only favors bestowed by the billionaire. In 2011, the New York Times reported on him having ‘‘done many favors for the justice and his wife,’’ including using his company to finance what the Times called ‘‘the multimillion-dollar purchase and restoration’’ of a property where Justice Thomas’s mother used to work; donating $175,000 to a Savannah library project dedicated to Justice Thomas; giving Justice Thomas a $19,000 Bible that belonged to Frederick Douglass; and ‘‘providing $500,000 for Ginni Thomas [his spouse] to start a Tea Party-related group.’’

Well, could any of that raise an appearance of impropriety or was it purely ‘‘personal,’’ nothing to do with the Court? Well, let’s have a look at a picture that shows us a little illumination of that.

This is a painting that Harlan Crow commissioned during one of Thomas’s visits to Crow’s private, lakeside, Adirondack retreat. On the right here is Crow himself. Next to him is Justice Thomas. Crow sits on the board of two conservative organizations that file briefs before the Supreme Court. Crow is also a donor to the Federalist Society, from which Trump’s infamous Supreme Court list emerged. By the way, dark money surged into the Federalist Society during that period. Crow is also a political donor to Republican politicians. Investigation would show whether all this amounted to enough business before the Court to create a conflict of interest, but the Supreme Court won’t permit any investigation of its members.

Here on the left is the infamous Leonard Leo, the man behind that Trump Supreme Court list, whose three new Justices created the far-right supermajority that Justice Thomas now enjoys. Leo’s front group, the Judicial Crisis Network, bought the campaign ads for the three Justices, paid for with dark money. Here is a graphic I have used before showing Leonard Leo’s flotilla of front groups that he uses. He has more. This is just one assortment of his front groups.

Here is the Judicial Crisis Network, which took checks as big as $17 million from anonymous donors and used that money to spend on ads for the confirmation of the three new Justices. Leo is the one who helped the rightwing billionaires knock out Harriet Miers. Do you remember when she was a nominee for the Supreme Court by a Republican President? Knocked her out to make room for none other than Sam Alito to get onto the Court. The campaign Leo oversaw by the billionaires to capture the Court has been tallied at more than $580 million— $580 million—much of it dark money. And he recently received from another creepy rightwing billionaire a $1.6 billion slush fund into yet another 501(c)(4) front group.

So it is deeply misleading to claim that Justice Thomas never vacationed with people who had business before the Court. Leonard Leo’s business is the Court. The creepy billionaire’s campaign was to capture the Court. Leo was the billionaire’s contractor for construction of the Court that dark money built. Personal hospitality.

After Thomas gets on the Court, a major Republican donor befriends him, with half a million dollars for his spouse’s activist group, a renovated home for his mother, and lavish undisclosed vacations, at which Thomas was sometimes accompanied by rightwing activists at the center of the scheme to capture the Court. And we are supposed to believe this is all legit? I don’t think so. Guess who else doesn’t think so. Justice Thomas, who knew this smelled enough that he broke the disclosure law repeatedly to keep it secret.

Guess who else doesn’t think so. Ask other Federal judges. They can’t get away with this personal hospitality nonsense. They know that this is wrong and that it is embarrassing to the judiciary. That is why the Judicial Conference just cracked down on the personal hospitality shenanigans of their supreme court colleagues.

Thomas is feeling enough heat that he even released a public statement. ‘‘Early in my tenure at the Court,’’ he said, ‘‘I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality . . . was not reportable’’ and that he has ‘‘always sought to comply with disclosure guidelines.’’ Wow, where to begin.

First, who ‘‘advised’’ Thomas that this ‘‘personal hospitality . . . was not reportable’’? Whoever it was, they were wrong. I have spoken before about this personal hospitality issue. The reporting exemption for personal hospitality covers ordinary gifts of ‘‘food, lodging, and entertainment’’ from friends and family. There is not an exemption for transportation, for all that flying around the world in private jets. It just isn’t there.

We don’t know who advised him, but I can pretty surely tell you who didn’t advise him; that is, the formal committees of the Judicial Conference that advise on ethics and financial disclosure issues. They have committees for this. That would be the obvious place to go for real advice. Yet all indications are that he did not.

I suspect that Thomas knew they would not like the facts that he would have to disclose if he were to ask them in candor to offer an opinion on his situation. He also, I suspect, knew that he would not like the answer he would get. So he just didn’t file.

 The recent definition of ‘‘personal hospitality’’ that the Judicial Conference announced in response to 2 years of urging from me was intended to clarify what was already prohibited—a clarification that every other branch had already issued. And the reporting law never exempted private jet travel. Thomas actually knew this because he had reported flying on Crow’s private jet before, back in 1997. What changed?

Federal law is crystal clear on the need to report real estate transactions worth over $1,000. The law is so clear that CNN reported yesterday that Thomas will amend his disclosure report to include that sale. According to what CNN called ‘‘a source close to Thomas,’’ Thomas ‘‘has always filled out his forms with the help of his aides,’’ and he didn’t think he needed to report the sale because he didn’t make any money off it.

Well, that excuse might be believable if the statutory language weren’t so clear— crystal clear—and if Thomas weren’t what one commentator has called a ‘‘repeat offender’’ at disclosure. In 2011, Thomas had to amend 13 years’ worth of financial disclosure reports to add his wife’s income from the Heritage Foundation, a dark money, conservative outfit which also files amicus briefs at the Supreme Court. He said it was a ‘‘misunderstanding.’’

 Here is what he misunderstood: Financial Disclosure Report form; B, spouse’s noninvestment income. ‘‘If you were married during any portion of the reporting year, complete this section.’’ Income: None or date and source. That is not complicated. Those instructions are simple.

And, like his private jet travel, Justice Thomas had reported his wife’s income before, back in 1996. What changed?

Congressman HANK JOHNSON and I sent a bicameral letter to Chief Justice Roberts urging him to get his courthouse in order and set up a means to investigate these and other serious allegations of misconduct. We also sent a letter to the Judicial Conference calling for the Conference to refer Justice Thomas to the Attorney General for failure to report his real estate transaction with Crow.

Here is how that works under the ethics law: The head of each Agency, or the Judicial Conference, shall refer to the Attorney General the name of any individual which such official or committee has reasonable cause to believe has willfully failed to file a report or has willfully falsified or willfully failed to file information required to be reported. The Attorney General [in turn] may bring a Civil Action against any individual . . . who knowingly or willfully fails to file or report any information that such individual is required to report. That is not complicated.

And the Supreme Court is completely alone here in this peculiar approach to these issues. Wherever else you go in government, you will find an ethics code, and you will find a process for investigating and enforcing the ethics rules. Congress has Ethics Committees. The executive branch has an ethics office and inspectors general. Federal courts have their own ethics process. Only the Supreme Court has none of that. No designated place to submit complaints. No investigative mechanism to review complaints. No impartial panel to decide complaints. No transparency. All of that needs to change if we are to rebuild confidence in our highest Court.

Without investigation, it is impossible to determine if Justice Thomas violated still another Federal law by participating in cases implicating his wife’s political activities. We need investigation to find out whether he broke that law. Without investigation, there is no way to evaluate the ethics of the 20- year, $30 million private judicial lobbying campaign run by rightwing political activists who wined and dined Justices Thomas, Alito, and Scalia—the three Justices who, as the New York Times described it, ‘‘proved amenable.’’ Amenable.

Without any prospect of investigation, there is little reason for a Justice to comply with the ethics standards. When there is no ref, there is ultimately no rules. The rule that clearly pertains is that it is not OK to judge one’s own case. That rule is so obvious, I hardly need to state it, and that rule is so old it is in Latin: ‘‘Nemo judex in sua causa.’’ No one should be judged in their own case. We know that Justice Thomas is familiar with this rule because he cited it in an opinion he wrote just a few years ago when he noted that ‘‘At common law, a fair tribunal meant that ‘no man shall be a judge in his own case.’’’ This good old rule, grounded in history and tradition, the present Supreme Court constantly and flagrantly flouts. That must stop. The Justices have lost the benefit of the doubt—240 years the Court went without needing this, but this Roberts Court has squandered the public’s confidence with its behavior, and now there must be rules and process.

The Senate Judiciary Committee, along with my subcommittee, will hold a hearing to consider these issues. I hope our colleagues will take it seriously. Congressman HANK JOHNSON and I have introduced the Supreme Court Ethics, Recusal, and Transparency Act, which would solve a lot of this mess— this big, tragic, unnecessary, self-inflicted mess.

Let me conclude where I began, with that noxious cocktail of creepy rightwing billionaires, phony front groups, amenable Justices, large sums of money, and secrecy. It is a toxic brew. The ethics failures at the Court are just one part of that stinking cocktail. We have Justices picked in some backroom at the Federalist Society by creepy billionaires to put on a list for Donald Trump. We have Justices who came through a confirmation process so tainted with influence that the FBI was breaking its own procedures in background investigations and Senators were pulling screeching 180s on confirming Supreme Court Justices in an election year. Flotillas of front group amici—amici curiae—who won’t tell who orchestrates and funds them appear in Court to tell those Justices what to do. And the Justices, with astonishing statistical reliability, do as they are told.

To get the results they want, the Justices smash through precedent, violate so-called conservative judicial principles, make up false facts, and change the applicable legal standards. All of this mess—all of it—is the product of that toxic brew of creepy rightwing billionaires, phony front groups, amenable Justices, large sums of money, and secrecy.

For now, let’s at least fix the ethics mess and bring the Supreme Court into alignment with the rest of the Federal courts. The highest Court should not have the lowest standards.

To be continued.