May 1, 2024

The Scheme 31: The Crooked Stick and the Supreme Court

Mr. President, I am here today for the 31st time in my series on the special interest scheme that captured the U.S. Supreme Court. There is an old adage that the best way to show that one stick is crooked is to set a straight stick down next to it.

So, today, we are going to look at some sticks. Supreme Court Justices are caught over and over receiving enormous gifts, often from people very interested in Court proceedings, and refusing even to report the gifts as the law requires. The disciplinary process for these Justices is virtually nonexistent. Not even basic fact-finding takes place.

So let’s compare the Court’s dereliction about its own conduct with the straight stick of how other Federal officials are treated when they don’t report gifts, but let’s start with a recap of the history. After the first round of gifts of yacht and jet travel from billionaire Harlan Crow to Justice Clarence Thomas, the Judicial Conference, which is the administrative body which oversees the judicial branch of government, investigated the matter, and that investigation buried the situation rather than get to the bottom of it to the point even of applying the wrong legal process.

The law requires the Conference, if there is a reasonable chance that the failures to disclose were willful, to refer the determination of willfulness to the Attorney General. There is good reason for that. One, the Attorney General has real investigative resources. Two, judicial clubbiness and mutual back-scratching is less likely. Three— three—the Attorney General can determine whether other crimes, like tax and false statement violations, are also implicated. But, back then, the Judicial Conference did not make the referral nor did they issue any public report providing any real explanation for that decision. On that transparency score, zero.

Recently, the Judicial Conference, to its great credit, blew up what I call the Scalia trick, which is, one, arranging free secret vacations with resort owners and, two, pretending the generous, free hospitality he received was personal hospitality under the disclosure laws because he had been extended a personal invitation.

Well, obviously, that is not what they mean in the disclosure laws by ‘‘personal hospitality.’’ It is supposed to cover things where you know people or it is your in-laws or it is your college roommate—where there is a true, longstanding personal relationship, not somebody you don’t know extending you a personal invitation.

So stopping that nonsense was good, but here is the transparency part: The Conference described what they did in that decision as a clarification— a clarification—which was also good because it acknowledged that was the rule all along. They weren’t making a new rule; they were clarifying what had been the rule all along.

But then along comes Clarence Thomas, who is usually completely silent on his many ethics failings—completely silent. On this occasion, he instantly launched lawyers to say he would comply with what they called the new rule. The trick to that stunt was the claim that this was a new rule. Claiming it was a new rule meant that he would only have to comply going forward, not go back and clean up years of false financial filings.

So I have asked the Judicial Conference to clarify what it meant by ‘‘clarification.’’ So far, I have received no answer. So, as of now, years of Thomas and Alito misfilings remain uncorrected, but it is still going on. So, on that, the transparency score is pending.

The Judicial Conference is also reviewing the more recent round of Harlan Crow-to-Clarence Thomas mega gifts, and it is to be hoped that the judges now on the Judicial Conference will do a better job of following the law than their predecessors did; that they will make a proper referral to the Attorney General and that they will let the facts be properly investigated. There is no sign of that yet, just that the investigation is ongoing. So the transparency score on that is also pending.

The danger in all of these decisions about judicial disclosure failings is the judges may see the whole mess as just a problem in a judicial bubble, their own little concern that is really no one else’s business. But it is far more serious than that, as I am about to show. However, if there is nothing to compare their own behavior to, nothing to compare their own stick to, they might not notice its crooks and its bends.

Let me go back to one of the reasons for referral to the Attorney General: He is positioned to determine if criminal laws were also violated along with disclosure laws. There is every reason to believe that Justices who failed to report big emoluments on their judicial disclosures also failed to make required tax disclosures.

I recently saw an article pointing out that even Academy Award gift bags create tax consequences. It was reported ‘‘the Academy decided to end its practice of handing out gift bags, citing the upfront tax burden they placed on stars.’’ Well, if gift bags for stars create tax consequences, so must big gifts to Justices. And if Hollywood stars are expected to understand that, well so should Supreme Court Justices.

If Justices didn’t make the required tax filings, they broke the law. And if they did make the required tax filings but still not the required judicial disclosure filings, that signals potential willfulness. It is the Attorney General’s job to determine, but if it is determined that the misfiling was willful, that brings its own penalties and consequences.

A large body of law about false statements also applies here, based on criminal laws, like 18 United States Code section 1001, a felony offense. Who knows, proper investigation may show that even fraud and bribery statutes apply, at least with respect to the billionaires who so generously lavish these Justices who keep handing them favorable decisions.

Remember, for instance, the $25,000 payment via the Court-fixer Leonard Leo to Thomas’s spouse, Ginni Thomas, specifying ‘‘no mention of Ginni, of course.’’

This is serious. By shrouding in clubby secrecy judicial colleagues’ violation of judicial disclosure laws, judges may also be covering up crimes—a problem reaching well beyond internal business of the judiciary. Plus, covering up crimes is just a bad look for judges.

So to the straight stick, let’s look at how other recipients of unreported gifts in other government offices have been treated when the unreported gifts come to light. If it is the judiciary’s position that Justices are subject to a lower standard of accountability than ordinary executive and legislative branch officials, well, I would like to hear them say that outright. But if the standard for Justices is not lower, then these cases are very relevant comparisons.

To keep it simple, today, let’s just compare cases involving nondisclosure of free gifts of vacations, event tickets, lodging and travel, like those gifts which Thomas and/or Alito received from wealthy donors.

In 2016, the government accepted a guilty plea from the Resident Agent in Charge of a Mexico DEA field office. The DEA agent had failed to disclose gifts of private air travel provided to him between his duty station in Mexico and his home in Texas—trips which he claimed were ‘‘for personal’’ purposes. He didn’t pay fair market value for the flights; although, he did occasionally pay fuel costs.

For his failure to disclose these gifts, the DEA agent pleaded guilty to a section 1001 false statements criminal violation, a felony, and was sentenced to 2 years of probation and 100 hours of community service.

That same year, the government accepted a guilty plea from the director of a Veterans Affairs hospital for her failure to disclose gifts she received totaling a bit more than $21,000, including domestic and international airline tickets, concert tickets worth $730, a check for $5,000, resort spa services, a gift card, and the registration fee for a marathon. She, too, pleaded guilty to a section 1001 false statement violation, a felony, and was sentenced to 2 years of probation.

The government prosecuted an official at the Department of Housing and Urban Development for failing to disclose gifts he received from the president of a company representing clients trying to secure HUD contracts. The gifts included luxury box tickets to a Washington Redskins football game. That official pleaded guilty to a section 1018 false statements by a public official violation and was sentenced to 12 months of probation, 60 hours of community service, and a $500 fine.

The Jack Abramoff scandal produced a plea agreement with former Congressman Robert Ney for failing to properly disclose gifts he received from Abramoff and others. The gifts involved a trip to Scotland, worth more than $160,000, including all-expense paid and reduced-price commercial and private jet travel; luxury accommodations in Scotland and London; and free golf, meals, drinks, and transportation. His other undisclosed or underreported gifts included an all-expense-paid 3-night trip to New Orleans to gamble and vacation worth about $7,200; and a 2-night vacation at a resort in Lake George, NY, with lodging, boat rental, a chartered car, meals, drinks, and golf worth more than $3,500.

Ney admitted to taking official actions to benefit Abramoff and others in connection with these gifts. He pleaded guilty to a section 1001 false statement violation and to conspiracy to commit honest services fraud, make false statements, and violate a lobbying ban. Ney was sentenced to 30 months in prison, 2 years of supervised release, a $6,000 fine, and 1,200 hours of community service.

In the Abramoff scandal, the government also prosecuted the chief of staff for the Department of Labor’s Employment Standards Administration for failing to disclose gifts he received from Abramoff and others representing a client with business before the Labor Department.

The unreported gifts included luxury box tickets to a Georgetown University basketball game, luxury suite tickets to a Harlem Globetrotters basketball game, tickets to a Baltimore Orioles baseball game, and tickets to a Washington Capitals hockey game. The official pleaded guilty to a section 1018 false statements by a public official violation and was sentenced to 36 months of probation and a $500 fine.

The government also prosecuted a Department of the Interior employee who had failed to disclose gifts from Abramoff. The gifts included tickets to a Washington Redskins game and to a Simon and Garfunkel concert.

According to a summary of the case by the Office of Government Affairs, the employee and Abramoff had developed a personal friendship. When Abramoff began giving this employee and his family sporting and concert tickets, the employee sometimes offered to pay for the items, but Abramoff said the tickets were for unused seats and that he wanted to give them to his friend—precisely like Alito’s claims of empty private jet seats and personal friendship. The Department of the Interior employee pleaded guilty to a section 1018 false statements by a public official violation and was sentenced to 2 years of probation and a $1,000 fine.

So what conclusion can you draw from those cases? The conclusion you draw from those cases is that over and over, in the real world of proper government disclosure and accountability, government officials are prosecuted for failing to disclose gifts far lower in value than what Supreme Court Justices have received.

In that real world, they plead guilty to felony criminal charges, and they receive criminal sentences. As felons, they lose various legal privilege. And this is just for failing to disclose. These cases did not involve tax crimes. The cases against these ordinary government officials, even a Member of Congress, provide a comparable—a comparable—against which undisclosed gifts to Justices of the Supreme Court should be measured.

What we see shows that equivalent acts in the other branches are prosecuted as crimes, but at the Supreme Court, they are covered up behind a wall of judicial omerta. We can’t even get the basic facts. That is no way to run a judicial branch. The judicial branch should be the straightest of sticks.

To be continued.