Law enforcement is fond of saying "no one is above the law."
But the questions surrounding Supreme Court Justice Clarence Thomas' unreported luxury gifts from a conservative billionaire over two decades are shedding light — once again — on the imbalance that ethics watchdogs say exists when it comes to who is held accountable and who is not.
"There's definitely a double standard at play here," said Walter Shaub, a senior fellow at the nonpartisan Project on Government Oversight. "An executive branch employee or, for that matter, even a member of Congress who so flagrantly violated the financial disclosure law as Clarence Thomas had, would certainly face some sort of consequences for their actions."
Shaub is also a former head of the Office of Government Ethics, which oversees how executive branch employees comport themselves — that's everyone from Census and National Parks workers to military generals and even the president of the United States.
He argues that there's one standard for the high-profile and politically connected and another for the almost 2 million lower-level federal workers.
"The Department of Justice has shown a real unwillingness to hold the top officials in government to the same standard it holds lower-level officials to," Shaub said. "And if you think about it, that's government ethics standing on its head, because the higher up you go and the more power you have to do harm, the more you should be held accountable, because the stakes are so much greater.
"In reality, however, the Department of Justice has prosecuted people from agencies throughout the government, has sought civil monetary penalties against them. ... But will they hold a Supreme Court justice to the same standard?" he wondered. "I don't know."
When ethics and politics collide
The Thomas controversy is coming at a time when the Supreme Court is facing a historic lack of confidence from the American public following the Dobbs ruling that overturned Roe v. Wade, the 1973 ruling that made abortion legal nationally, as well as a slew of decisions that have upheld gun rights and eroded voting rights, for example.
A new NPR/PBS NewsHour/Marist poll released Monday found 6 in 10 said they have little-to-no confidence in the court and two-thirds think the justices should serve only for a limited time, opposing lifetime appointments.
Thomas is widely viewed as the most conservative justice on the court and has been a target of the left, which he has enraged with his views and sharply worded, hardline rulings.
But, for Shaub — who himself has been a target of the right for his willingness to stand up to the Trump White House when he was the head of OGE — this has little to do with politics.
"The real partisanship here is in those who are defending [Thomas], because there is a long history of the Department of Justice holding other federal officials accountable for much less," Shaub said. "And as a result, if you're out there saying, 'Oh, well, the law should not apply to Justice Thomas or he shouldn't be held accountable, even though all these other individuals have been held accountable for much less serious violations of disclosure requirements,' you're really revealing your own political bias."
Pushing for action
The Project on Government Oversight last week sent a 20-page letter to the Justice Department urging action against Thomas — either civilly or criminally.
Shaub points out that lower-level government officials have been pursued criminally for similar omissions that amount to less money. He and others believe there is evidence for criminal intent, but even if the Justice Department feels the bar is too high to prove that, Thomas could be held liable for almost $1 million in civil penalties, Shaub notes.
That's because the law stipulates that anyone who "knowingly and willfully fails to file or report any information required by filers of public reports" faces a penalty of $71,316 per offense for those committed after Nov. 2, 2015. The penalty for offenses from 2007 to 2015 is $50,000. Each unreported luxury trip could include multiple violations, which would add up fast.
Similarly to POGO, the Campaign Legal Center, another nonpartisan watchdog, sent a letter to the U.S. Judicial Conference imploring it to refer Thomas to the attorney general, "because there is 'reasonable cause to believe' that he 'willfully failed to file information required to be reported' under the Ethics in Government Act," it wrote.
"If the Judicial Conference fails to publicly address the substantial evidence of blatant violations of a disclosure law that other federal judges understand and regularly follow, it creates an exception for Justice Thomas that swallows the rule," the center wrote.
What Thomas did — and didn't do
This is truly the most egregious financial disclosure violation I've seen in more than two decades of working in government ethics
Almost every federal agency, branch and employee, including federal judges, are governed by varying codes of ethics.
The Supreme Court doesn't have one.
The nine justices, like nearly half a million others in the government, are required to file financial disclosures. They are required, as of 2023, to disclose gifts worth more than $480 and before that, it was $415.
ProPublica reported that Thomas did not disclose two decades of gifts worth far more than that in the form of vacations, overnight stays, private jet trips and yacht cruises financed by longtime Thomas associate Harlan Crow.
Crow's companies also bought a property from Thomas, where his elderly mother still lives. The home was fixed up, Crow's companies pay the taxes on it, and it's unclear if Thomas' mother pays any rent.
None of this was disclosed — despite a requirement under the post-Watergate Ethics in Government Act of 1978 that federal employees do so.
Thomas previously disclosed similar gifts for years. But after a 2004 Los Angeles Times story highlighted that he had taken more than any other justice on the court, Thomas stopped the depth of disclosures.
In a statement, Thomas did not deny the gifts or his failure to disclose them. Instead, he said he believed he didn't have to. He said he counts Crow and his wife Kathy "among our dearest friends."
"Early in my tenure at the Court," Thomas said, "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."
Watchdogs don't buy that.
"I mean, even if you accept [Thomas'] explanation," Shaub said, "this is a Supreme Court justice who says he can't figure out the financial disclosure requirements that half a million federal officials figure out all the time."
Both Shaub and the Campaign Legal Center point squarely at Thomas' history of disclosing similar gifts for years before the LA Times story. And the legal center also notes a pattern of Thomas claiming to not understand the law when he had followed it in the past.
It points out that Thomas admitted in 2011, for example, to not reporting his wife's income, amending his filing only after watchdog groups pointed it out, despite having accurately disclosed his wife's income for a decade before he was on the court as chair of the Equal Employment Opportunity Commission beginning in the 1980s.
Defining "personal hospitality"
At the center of whether Thomas could be held responsible is the definition of "personal hospitality."
That's because the 1978 Ethics in Government Act specifically states that:
"...any food, lodging, or entertainment received as personal hospitality of any individual need not be reported."
Thomas cites that "personal hospitality" exemption in his statement in response to the ProPublica reporting. He notes that Crow is a close friend and with new, tightened Judicial Conference guidance from March, Thomas is pledging that it is his "intent to follow this guidance in the future."
Arguably, the "personal hospitality" exemption in the 1978 ethics law is ambiguous, so the Judicial Conference tried to clarify in March that judges should report things like free overnight stays and rides on private jets.
As the Campaign Legal Center notes though, the ethics law and financial disclosure regulations "have always required the disclosure of free travel expenses, even before the March 2023 update to the regulations."
The ethics law only specifically says "food, lodging or entertainment" are part of the exemption, not travel, so those rides on private jets and yachts should have been reported, watchdogs point out.
What's more, Shaub argues that the "personal hospitality" exemption should not come into play here at all, because the "gifts" Thomas received were technically from companies, which is not allowed.
The ethics law states (emphasis ours):
"'personal hospitality of any individual' means hospitality extended for a nonbusiness purpose by an individual, not a corporation or organization... ."
As ProPublica reported, Crow's purchases of Thomas' Georgia property were through Texas-based Savannah Historic Developments LLC, which had only recently been created, and is managed by the Delaware-based LLC, HRC Family Branch GP, "an umbrella company that also covers other Crow assets like his private jet."
There have been plenty of people in the federal government through the years who have faced consequences for financial disclosure omissions, but Supreme Court justices seem to enjoy special status, adhering to no code of ethics and with lifetime appointments.
"Federal employees in the executive branch, employees of Congress, members of Congress and even federal judges are all subject to strict ethics standards," Shaub explained. "And they probably would not have been able to accept gifts like this. They would have been told, in most cases, to either turn down the gifts or if they had already accepted them, repay them, which given that these gifts to Clarence Thomas appear to have cost millions, that would be a tall order."
Watchdogs worry that unless the Justice Department pursues action, the message to those vaunted nine on the Supreme Court — and to lots of other high-ranking officials — is that they actually are above the law.
"This is truly the most egregious financial disclosure violation I've seen in more than two decades of working in government ethics," Shaub noted, adding that there is what he calls a "culture of exceptionalism" at the Supreme Court, where rules that apply to the rest of government and even federal judges "shouldn't apply to them."
"I imagine your average employee's probably pretty annoyed at being held to a higher standard than a Supreme Court justice," he said.
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