The Trumpscum Catholic Fascist Judiciary Corruption (1): Pornographer Thomas' Better Living Through Bribery
David Shasha
Clarence Thomas Broke the Law and It Isn’t Even Close
By: Dahlia Lithwick and Mark Joseph Stern
ProPublica’s scrupulously reported new piece on Justice Clarence Thomas’ decadeslong luxury travel on the dime of a single GOP megadonor will probably not shock you at all. Sure, the dollar amounts spent are astronomical, and of course the justice failed to report any of it, and of course the megadonor insists that he and Thomas are dear old friends, so of course the superyacht and the flights on the Bombardier Global 5000 jet and the resorts are all perfectly benign. So while the details are shocking, the pattern here is hardly a new one. This is a longstanding ethics loophole that has been exploited by parties with political interests in cases before the court to curry favor in exchange for astonishing junkets and perks. It is allowed to happen.
We will doubtless spend a few news cycles expressing outrage that Harlan Crow has spent millions of dollars lavishing the Thomases with lux vacations and high-end travel and barely pretended to separate business and pleasure, giving half a million dollars to a Tea Party group founded by Ginni Thomas in 2011 (which funded her own $120,000 salary). But because the justices are left to police themselves and opt not to do so, we will turn to other matters in due time. Before the outrage dries up, however, it is worth zeroing in on two aspects of the ProPublica report that do have lasting legal implications. First, the same people who benefited from the lax status quo continue to fight against any meaningful reforms that might curb the justices’ gravy train. Second, the rules governing Thomas’ conduct over these years, while terribly insufficient, actually did require him to disclose at least some of these extravagant gifts. The fact that he ignored the rules anyway illustrates just how difficult it will be to force the justices to obey the law: Without the strong threat of enforcement, a putative public servant like Thomas will thumb his nose at the law.
If there is a single image that captures this seedy state of affairs, it is a painting of Thomas hanging out with Leonard Leo (Federalist Society co-chair and judicial power broker) and Mark Paoletta (who has served as chief counsel to former Vice President Mike Pence and general counsel of Donald Trump’s Office of Management and Budget). Both are political operatives, though Crow assures us that they would never dare talk about Thomas’ work. This image should be enough to shock anyone into taking action against the spigot of dark money that flows directly from billionaire donors into the court, its justices, and their spouses’ pockets. Continuing to live as though there is nothing to be done about any of this is a choice. We make it every day.
In addition to working in the Trump-Pence administration, Paoletta serves as the Thomases’ longtime fixer, attack dog, and booster. He represented Ginni Thomas when she spoke to the Jan 6. committee about her support for overturning the 2020 election. He also edited a biography of Clarence Thomas based on an almost comically obsequious documentary (in which he was also involved). So it should not be a surprise that Paoletta has also testified against any ethics reform measures for the Supreme Court, dismissing the reform movement as part of “the coordinated campaign by some Democrats and their allies in the corporate media to smear conservative Justices with the goal of delegitimizing the court.”
The lack of a binding ethics code for justices redounds to Paoletta’s benefit: ProPublica reports that he joined the Thomases on a trip through Indonesia’s Lesser Sunda Islands on the Crows’ yacht. At the time, Paoletta was serving in the Trump administration, and was therefore subject to far stricter ethics rules than the justice; he told ProPublica that he reimbursed Crow for the trip, although he would not give a price tag. (It is an extraordinary feat for a public servant to be able to afford a private international yacht adventure; it also proves that even in government posts that actually have enforceable ethics rules, those rules may not be up to the job of policing corruption.)
This story is a perfect example, in miniature, of how Thomas’ network of benefactors ensure the justice’s billionaire lifestyle stays off the books. Paoletta testifies before Congress that ethics reforms are evil; Crow funds the Republican lawmakers who ensure ethics reforms don’t pass; and nobody knows the extent of Thomas’ unceasing stream of gifts until ProPublica reporters wrangle the details from yacht crews and flight records.
We should pause here to note that the situation is not entirely hopeless: Just last month, the Administrative Office of the U.S. Courts issued new guidance directing justices to disclose the kind of gifts that Thomas has enjoyed for decades. Indeed, in retrospect the guidance almost seems designed to force Thomas into reporting trips, flights, vacations, and other opulent presents from his pals. These rules have long exempted “personal hospitality” from disclosure requirements. But the new guidance clarifies that “personal hospitality” does not include “gifts other than food, lodging or entertainment, such as transportation that substitutes for commercial transportation.” And it explicitly states that stays at “property or facilities” owned by an entity (like the private resorts Thomas frequents) must be disclosed, even if they’re owned “wholly or in part by an individual.”
There is some dispute about whether the new guidance captures Thomas’ conduct for the first time ever, or if it merely bolds, italicizes, and underlines what should’ve already been obvious. ProPublica cites ethics experts who say that at least some of Thomas’ behavior was prohibited under the old guidance. NBC News cites an ethics expert who says the justice’s behavior was arguably permissible, even if it rested on an interpretation that was, at best, “a stretch.” This question is not academic: The answer determines whether Thomas’ conduct prior to the promulgation of the new rule was outright illegal or simply unseemly.
We align ourselves with the former view: Clarence Thomas broke the law, and it isn’t particularly close. The best argument in his defense is that the old definition of “personal hospitality” did not require him to disclose transportation, including private flights. This reading works only by torturing the English language beyond all recognition. The old rule, like the statute it derives from, defined the term as hospitality that is “extended” either “at” a personal residence or “on” their “property or facilities.” A person dead-set on defending Thomas might be able to squeeze these yacht trips into this definition, arguing that, by hosting Thomas on his boat for food, drink, and sightseeing, Crow “extended” hospitality “on” his own property. But lending out the private jet for Thomas’ personal use? Come on. There’s no plausible way to shoehorn these trips into the old rule—which quotes the statute verbatim—even under the most expansive interpretation imaginable. Letting somebody use your private jet to travel around the country is not “extend[ing]” hospitality “on” your property. It is lending out your property to someone else so they can avoid paying for a commercial flight. Thomas broke the law, a law which contains serious civil penalties, though the bogus technicality on which he relies, in addition to his political clout, will be more than enough to ensure that he never faces any actual legal consequences.
If you need further evidence, there’s another, equally clear indication about the nature of the hospitality exception to the disclosure requirement in a neighboring provision of the statute. This section explains which gifts, exactly, a justice must include in their annual report. It reiterates the exception for “personal hospitality,” but provides an even clearer definition of the types of hospitality at issue: “any food, lodging, or entertainment received as personal hospitality of an individual need not be reported.” (Emphasis added.) This language confirms the narrow scope of the hospitality exception: It covers housing, meals, and activities provided during a visit. It does not cover transportation. And even if you read an implied inclusion of transportation to reach the “lodging”—which is implausible, but whatever—that does not cover Crow lending Thomas his jet to fly around for the justice’s personal adventures.
For years we have been hearing from the justices that it’s not their fault so many parties with business before the court are also their best friends. We’ve heard that it’s not on them to stop generous pals from lavishing gifts upon them. We have been given to understand—as Justice Antonin Scalia explained in justifying his own travels with parties litigating before him—that justices need to hang out with fabulous and wealthy movers and shakers because who else is there to hang out with. Oh, and for years we have swallowed the pablum that these trips are so intrinsically fun and interesting that Clarence Thomas, Leonard Leo, Mark Paoletta, and a megadonor can sit around for hours chatting about sports, and not talking about any past, present, or future matter that may come before the court.
Within the legal community, this state of affairs is all justified on the grounds that no justice can retire to become a millionaire lobbyist or general counsel (because, naturally, they must protect the seat). And so unlike regular politicians—as well as other life-tenured judges who step down to take lucrative positions in private practice—the justices are tragically trapped in jobs that don’t pay what they think they are worth. The logic that allows interested parties to buy access by funneling cash to the Supreme Court Historical Society, or judicial spouses, or to million-dollar luxury travel is seen as perfectly acceptable. Indeed, it’s somehow seen as reasonable compensation for lost opportunities—a more dignified alternative to the revolving door. And so long as we believe Supreme Court justices are quasi-monarchs who are entitled to live like lords, they will find ways to live like lords. Those who can afford to purchase their lordliness will pony up whatever it takes. And we will all say that it’s awful. Until we learn about the next one, and the next one, and the one after that.
From Slate, April 6, 2023
Clarence Thomas Secretly Accepted Luxury Trips From Major GOP Donor
By: Joshua Kaplan, Justin Elliott and Alex Mierjeski
https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow
In late June 2019, right after the U.S. Supreme Court released its final opinion of the term, Justice Clarence Thomas boarded a large private jet headed to Indonesia. He and his wife were going on vacation: nine days of island-hopping in a volcanic archipelago on a superyacht staffed by a coterie of attendants and a private chef.
If Thomas had chartered the plane and the 162-foot yacht himself, the total cost of the trip could have exceeded $500,000. Fortunately for him, that wasn’t necessary: He was on vacation with real estate magnate and Republican megadonor Harlan Crow, who owned the jet — and the yacht, too.
For more than two decades, Thomas has accepted luxury trips virtually every year from the Dallas businessman without disclosing them, documents and interviews show. A public servant who has a salary of $285,000, he 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.
The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.
These trips appeared nowhere on Thomas’ financial disclosures. His failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts, two ethics law experts said. He also should have disclosed his trips on the yacht, these experts said.
Thomas did not respond to a detailed list of questions.
In a statement, Crow acknowledged that he’d extended “hospitality” to the Thomases “over the years,” but said that Thomas never asked for any of it and it was “no different from the hospitality we have extended to our many other dear friends.”
Through his largesse, Crow has gained a unique form of access, spending days in private with one of the most powerful people in the country. By accepting the trips, Thomas has broken long-standing norms for judges’ conduct, ethics experts and four current or retired federal judges said.
“It’s incomprehensible to me that someone would do this,” said Nancy Gertner, a retired federal judge appointed by President Bill Clinton. When she was on the bench, Gertner said, she was so cautious about appearances that she wouldn’t mention her title when making dinner reservations: “It was a question of not wanting to use the office for anything other than what it was intended.”
Virginia Canter, a former government ethics lawyer who served in administrations of both parties, said Thomas “seems to have completely disregarded his higher ethical obligations.”
“When a justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust,” said Canter, now at the watchdog group CREW. “Quite frankly, it makes my heart sink.”
ProPublica uncovered the details of Thomas’ travel by drawing from flight records, internal documents distributed to Crow’s employees and interviews with dozens of people ranging from his superyacht’s staff to members of the secretive Bohemian Club to an Indonesian scuba diving instructor.
Federal judges sit in a unique position of public trust. They have lifetime tenure, a privilege intended to insulate them from the pressures and potential corruption of politics. A code of conduct for federal judges below the Supreme Court requires them to avoid even the “appearance of impropriety.” Members of the high court, Chief Justice John Roberts has written, “consult” that code for guidance. The Supreme Court is left almost entirely to police itself.
There are few restrictions on what gifts justices can accept. That’s in contrast to the other branches of government. Members of Congress are generally prohibited from taking gifts worth $50 or more and would need pre-approval from an ethics committee to take many of the trips Thomas has accepted from Crow.
Thomas’ approach to ethics has already attracted public attention. Last year, Thomas didn’t recuse himself from cases that touched on the involvement of his wife, Ginni, in efforts to overturn the 2020 presidential election. While his decision generated outcry, it could not be appealed.
Crow met Thomas after he became a justice. The pair have become genuine friends, according to people who know both men. Over the years, some details of Crow’s relationship with the Thomases have emerged. In 2011, The New York Times reported on Crow’s generosity toward the justice. That same year, Politico revealed that Crow had given half a million dollars to a Tea Party group founded by Ginni Thomas, which also paid her a $120,000 salary. But the full scale of Crow’s benefactions has never been revealed.
Long an influential figure in pro-business conservative politics, Crow has spent millions on ideological efforts to shape the law and the judiciary. Crow and his firm have not had a case before the Supreme Court since Thomas joined it, though the court periodically hears major cases that directly impact the real estate industry. The details of his discussions with Thomas over the years remain unknown, and it is unclear if Crow has had any influence on the justice’s views.
In his statement, Crow said that he and his wife have never discussed a pending or lower court case with Thomas. “We have never sought to influence Justice Thomas on any legal or political issue,” he added.
In Thomas’ public appearances over the years, he has presented himself as an everyman with modest tastes.
“I don’t have any problem with going to Europe, but I prefer the United States, and I prefer seeing the regular parts of the United States,” Thomas said in a recent interview for a documentary about his life, which Crow helped finance.
“I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it,” Thomas said. “I come from regular stock, and I prefer that — I prefer being around that.”
“You Don’t Need to Worry About This — It’s All Covered”
Crow’s private lakeside resort, Camp Topridge, sits in a remote corner of the Adirondacks in upstate New York. Closed off from the public by ornate wooden gates, the 105-acre property, once the summer retreat of the same heiress who built Mar-a-Lago, features an artificial waterfall and a great hall where Crow’s guests are served meals prepared by private chefs. Inside, there’s clear evidence of Crow and Thomas’ relationship: a painting of the two men at the resort, sitting outdoors smoking cigars alongside conservative political operatives. A statue of a Native American man, arms outstretched, stands at the center of the image, which is photographic in its clarity.
The painting captures a scene from around five years ago, said Sharif Tarabay, the artist who was commissioned by Crow to paint it. Thomas has been vacationing at Topridge virtually every summer for more than two decades, according to interviews with more than a dozen visitors and former resort staff, as well as records obtained by ProPublica. He has fished with a guide hired by Crow and danced at concerts put on by musicians Crow brought in. Thomas has slept at perhaps the resort’s most elegant accommodation, an opulent lodge overhanging Upper St. Regis Lake.
The mountainous area draws billionaires from across the globe. Rooms at a nearby hotel built by the Rockefellers start at $2,250 a night. Crow’s invitation-only resort is even more exclusive. Guests stay for free, enjoying Topridge’s more than 25 fireplaces, three boathouses, clay tennis court and batting cage, along with more eccentric features: a lifesize replica of the Harry Potter character Hagrid’s hut, bronze statues of gnomes and a 1950s-style soda fountain where Crow’s staff fixes milkshakes.
Crow’s access to the justice extends to anyone the businessman chooses to invite along. Thomas’ frequent vacations at Topridge have brought him into contact with corporate executives and political activists.
During just one trip in July 2017, Thomas’ fellow guests included executives at Verizon and PricewaterhouseCoopers, major Republican donors and one of the leaders of the American Enterprise Institute, a pro-business conservative think tank, according to records reviewed by ProPublica. The painting of Thomas at Topridge shows him in conversation with Leonard Leo, the Federalist Society leader regarded as an architect of the Supreme Court’s recent turn to the right.
In his statement to ProPublica, Crow said he is “unaware of any of our friends ever lobbying or seeking to influence Justice Thomas on any case, and I would never invite anyone who I believe had any intention of doing that.”
“These are gatherings of friends,” Crow said.
Crow has deep connections in conservative politics. The heir to a real estate fortune, Crow oversees his family’s business empire and recently named Marxism as his greatest fear. He was an early patron of the powerful anti-tax group Club for Growth and has been on the board of AEI for over 25 years. He also sits on the board of the Hoover Institution, another conservative think tank.
A major Republican donor for decades, Crow has given more than $10 million in publicly disclosed political contributions. He’s also given to groups that keep their donors secret — how much of this so-called dark money he’s given and to whom are not fully known. “I don’t disclose what I’m not required to disclose,” Crow once told the Times.
Crow has long supported efforts to move the judiciary to the right. He has donated to the Federalist Society and given millions of dollars to groups dedicated to tort reform and conservative jurisprudence. AEI and the Hoover Institution publish scholarship advancing conservative legal theories, and fellows at the think tanks occasionally file amicus briefs with the Supreme Court.
On the court since 1991, Thomas is a deeply conservative jurist known for his “originalism,” an approach that seeks to adhere to close readings of the text of the Constitution. While he has been resolute in this general approach, his views on specific matters have sometimes evolved. Recently, Thomas harshly criticized one of his own earlier opinions as he embraced a legal theory, newly popular on the right, that would limit government regulation. Small evolutions in a justice’s thinking or even select words used in an opinion can affect entire bodies of law, and shifts in Thomas’ views can be especially consequential. He’s taken unorthodox legal positions that have been adopted by the court’s majority years down the line.
Soon after Crow met Thomas three decades ago, he began lavishing the justice with gifts, including a $19,000 Bible that belonged to Frederick Douglass, which Thomas disclosed. Recently, Crow gave Thomas a portrait of the justice and his wife, according to Tarabay, who painted it. Crow’s foundation also gave $105,000 to Yale Law School, Thomas’ alma mater, for the “Justice Thomas Portrait Fund,” tax filings show.
Crow said that he and his wife have funded a number of projects that celebrate Thomas. “We believe it is important to make sure as many people as possible learn about him, remember him and understand the ideals for which he stands,” he said.
To trace Thomas’ trips around the world on Crow’s superyacht, ProPublica spoke to more than 15 former yacht workers and tour guides and obtained records documenting the ship’s travels.
On the Indonesia trip in the summer of 2019, Thomas flew to the country on Crow’s jet, according to another passenger on the plane. Clarence and Ginni Thomas were traveling with Crow and his wife, Kathy. Crow’s yacht, the Michaela Rose, decked out with motorboats and a giant inflatable rubber duck, met the travelers at a fishing town on the island of Flores.
Touring the Lesser Sunda Islands, the group made stops at Komodo National Park, home of the eponymous reptiles; at the volcanic lakes of Mount Kelimutu; and at Pantai Meko, a spit of pristine beach accessible only by boat. Another guest was Mark Paoletta, a friend of the Thomases then serving as the general counsel of the Office of Management and Budget in the administration of President Donald Trump.
Paoletta was bound by executive branch ethics rules at the time and told ProPublica that he discussed the trip with an ethics lawyer at his agency before accepting the Crows’ invitation. “Based on that counsel’s advice, I reimbursed Harlan for the costs,” Paoletta said in an email. He did not respond to a question about how much he paid Crow.
(Paoletta has long been a pugnacious defender of Thomas and recently testified before Congress against strengthening judicial ethics rules. “There is nothing wrong with ethics or recusals at the Supreme Court,” he said, adding, “To support any reform legislation right now would be to validate these vicious political attacks on the Supreme Court,” referring to criticism of Thomas and his wife.)
The Indonesia vacation wasn’t Thomas’ first time on the Michaela Rose. He went on a river day trip around Savannah, Georgia, and an extended cruise in New Zealand roughly a decade ago.
As a token of his appreciation, he gave one yacht worker a copy of his memoir. Thomas signed the book: “Thank you so much for all your hard work on our New Zealand adventure.”
Crow’s policy was that guests didn’t pay, former Michaela Rose staff said. “You don’t need to worry about this — it’s all covered,” one recalled the guests being told.
There’s evidence Thomas has taken even more trips on the superyacht. Crow often gave his guests custom polo shirts commemorating their vacations, according to staff. ProPublica found photographs of Thomas wearing at least two of those shirts. In one, he wears a blue polo shirt embroidered with the Michaela Rose’s logo and the words “March 2007” and “Greek Islands.”
Thomas didn’t report any of the trips ProPublica identified on his annual financial disclosures. Ethics experts said the law clearly requires disclosure for private jet flights and Thomas appears to have violated it.
Justices are generally required to publicly report all gifts worth more than $415, defined as “anything of value” that isn’t fully reimbursed. There are exceptions: If someone hosts a justice at their own property, free food and lodging don’t have to be disclosed. That would exempt dinner at a friend’s house. The exemption never applied to transportation, such as private jet flights, experts said, a fact that was made explicit in recently updated filing instructions for the judiciary.
Two ethics law experts told ProPublica that Thomas’ yacht cruises, a form of transportation, also required disclosure.
“If Justice Thomas received free travel on private planes and yachts, failure to report the gifts is a violation of the disclosure law,” said Kedric Payne, senior director for ethics at the nonprofit government watchdog Campaign Legal Center. (Thomas himself once reported receiving a private jet trip from Crow, on his disclosure for 1997.)
The experts said Thomas’ stays at Topridge may have required disclosure too, in part because Crow owns it not personally but through a company. Until recently, the judiciary’s ethics guidance didn’t explicitly address the ownership issue. The recent update to the filing instructions clarifies that disclosure is required for such stays.
How many times Thomas failed to disclose trips remains unclear. Flight records from the Federal Aviation Administration and FlightAware suggest he makes regular use of Crow’s plane. The jet often follows a pattern: from its home base in Dallas to Washington Dulles airport for a brief stop, then on to a destination Thomas is visiting and back again.
ProPublica identified five such trips in addition to the Indonesia vacation.
On July 7 last year, Crow’s jet made a 40-minute stop at Dulles and then flew to a small airport near Topridge, returning to Dulles six days later. Thomas was at the resort that week for his regular summer visit, according to a person who was there. Twice in recent years, the jet has followed the pattern when Thomas appeared at Crow’s properties in Dallas — once for the Jan. 4, 2018, swearing-in of Fifth Circuit Judge James Ho at Crow’s private library and again for a conservative think tank conference Crow hosted last May.
Thomas has even used the plane for a three-hour trip. On Feb. 11, 2016, the plane flew from Dallas to Dulles to New Haven, Connecticut, before flying back later that afternoon. ProPublica confirmed that Thomas was on the jet through Supreme Court security records obtained by the nonprofit Fix the Court, private jet data, a New Haven plane spotter and another person at the airport. There are no reports of Thomas making a public appearance that day, and the purpose of the trip remains unclear.
Jet charter companies told ProPublica that renting an equivalent plane for the New Haven trip could cost around $70,000.
On the weekend of Oct. 16, 2021, Crow’s jet repeated the pattern. That weekend, Thomas and Crow traveled to a Catholic cemetery in a bucolic suburb of New York City. They were there for the unveiling of a bronze statue of the justice’s beloved eighth grade teacher, a nun, according to Catholic Cemetery magazine.
As Thomas spoke from a lectern, the monument towered over him, standing 7 feet tall and weighing 1,800 pounds, its granite base inscribed with words his teacher once told him. Thomas told the nuns assembled before him, “This extraordinary statue is dedicated to you sisters.”
He also thanked the donors who paid for the statue: Harlan and Kathy Crow.
Matt Easton contributed reporting.
From ProPublica, April 6, 2023
Clarence Thomas Defends Undisclosed “Family Trips” with GOP Megadonor. Here Are the Facts.
By: Joshua Kaplan, Justin Elliott and Alex Mierjeski
https://www.propublica.org/article/clarence-thomas-response-trips-legal-experts-harlan-crow
In a rare public statement, Supreme Court Justice Clarence Thomas responded Friday to a ProPublica report that revealed that Thomas has, for decades, accepted luxury travel from billionaire Republican megadonor Harlan Crow and failed to disclose it.
Thomas’ brief statement acknowledges joining Crow and his wife, who he described as among his “dearest friends,” on “a number of family trips” over the years. He also defended his failure to disclose them.
“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas said in the statement. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”
But seven legal ethics experts consulted by ProPublica, including former ethics lawyers for Congress and the White House, said the law clearly requires that gifts of transportation, including private jet flights, be disclosed. If Thomas is arguing otherwise, the experts said, he is incorrect.
A Supreme Court spokesperson did not immediately respond to questions for Thomas about the specifics of the advice he was given or who he consulted.
ProPublica’s story Thursday revealed that Thomas had taken international cruises on Crow’s superyacht, flown on Crow’s private jet and regularly vacationed at Crow’s private resort in the Adirondacks. In one instance, Thomas flew on Crow’s jet from Washington Dulles airport to New Haven, Connecticut, then flew back three hours later.
Thomas did not respond to detailed questions for that story. His statement Friday did not dispute ProPublica’s reporting about his trips. It also did not address broader criticisms from ethics experts and other judges that by repeatedly accepting such trips, he broke long-standing ethical norms for judges’ conduct.
In a previous statement to ProPublica, Crow said that Thomas “never asked for any of this hospitality” and that his treatment of the justice was “no different from the hospitality we have extended to our many other dear friends.”
A law passed in the wake of the Watergate scandal, the Ethics in Government Act, requires Supreme Court justices and many other federal officials to report most gifts to the public. Justices are generally required to report all gifts worth more than $415, defined as “anything of value” that they don’t repay the full cost of. Gifts are disclosed in an annual financial report that is made public.
There are exceptions, and experts parsing the legality of Thomas’ failure to disclose the travel have been focused on a carve-out known as the “personal hospitality” exemption.
The exemption states that gifts of “food, lodging, or entertainment received as personal hospitality” don’t have to be disclosed. The law defines “personal hospitality” in a way that further limits the exception. It only applies to gifts received from an individual at that person’s home or at properties that they or their family own.
ProPublica asked the seven legal ethics experts about the exception and Thomas’ statement. All said that the law’s language clearly requires that gifts of transportation, such as private jet travel or cruises on a yacht, be disclosed and said Thomas appears to have violated the law by failing to report them.
“I don’t think you can make an argument that private jet flights need not be included under the statute,” said Stephen Gillers, a professor emeritus and ethics expert at New York University law school.
”It is absolutely impossible that anyone could reasonably interpret that exception to apply to private jet flights,” said Walter Shaub, former director of the U.S. Office of Government Ethics. “Not in any universe.”
Richard Painter, who served as the chief ethics lawyer for the George W. Bush White House, said Thomas’ explanation of why he didn’t disclose the trips “makes absolutely no sense.” Painter emphasized that the exemption only covers three categories: food, lodging and entertainment. Private jet flights would fall into none of those, he said.
“Justice Thomas likes to focus on the language of authoritative texts, and that’s not what he’s doing in this statement,” said Kathleen Clark, a legal ethics expert at Washington University in St. Louis.
Thomas himself disclosed at least one private jet flight from Crow, in his financial disclosure for 1997. He has not disclosed a trip on Crow’s plane in more than 20 years.
Reviewing other federal judges’ financial disclosure filings, ProPublica found at least six examples of judges disclosing gifts of private jet travel in recent years.
In the Ethics in Government Act, Congress explicitly stated that the law covers Supreme Court justices. But Chief Justice John Roberts has raised questions about Congress’ power to impose rules on the Supreme Court.
“The Court has never addressed whether Congress may impose those requirements on the Supreme Court,” Roberts wrote roughly a decade ago in an annual report on the judiciary. “The Justices nevertheless comply with those provisions.”
Thomas’ statement Friday does not cite the law itself but rather “disclosure guidelines” for the judiciary. The guidelines elaborate on how the law applies to the courts and are issued by the policymaking arm of the judiciary.
Thomas’ statement refers to a March update of the judiciary’s guidelines for financial disclosure. “It is, of course, my intent to follow this guidance in the future,” he said. The new guidelines explicitly say that transportation is not food, lodging or entertainment and so must be disclosed.
Questions about Thomas’ compliance with the disclosure law have come up in the past. In 2011, he announced that he was amending years’ worth of his disclosure forms because he had failed to disclose the sources of his wife, Ginni’s, income.
At the time, he cited a “misunderstanding of the filing instructions.”
From ProPublica, April 7, 2023