Q: Should Justice Thomas have accepted all the trips and the gifts?
A: Of course not. It looks incredibly suspicious for a Supreme Court justice to have accepted such largesse. Few things impugn the integrity of the judiciary more than free vacations on a yacht, free trips on private planes and an unreported real estate deal.
Q: Did Justice Thomas’ non-disclosure of his trips on Harlan Crow’s yacht and private plane violate federal law?
A: Possibly. Defenders of Justice Thomas point to Thomas’ statement that he was availing himself of what’s known as the “personal hospitality exemption” for reporting certain gifts and trips, and critics point to how, under the Ethics in Government Act, that very exemption does not include “transportation” by name — just “food, lodging, or entertainment.”
Here’s how Thomas’ defense might work: if you squint really hard while looking at the financial disclosure filing instructions, and forget that the justices are “all textualists now,” you find yourself looking at multiple and somewhat contradictory references to “personal hospitality.”
Before a change was made last month, the instructions for filling out Part IV (“Reimbursement”) of the report used to state: don’t include gifts of personal hospitality here; include those in Part V (“Gifts”). But then the instructions for Part V stated: personal hospitality — which is hospitality on “property or facilities owned by” your close friend — “need not be reported.”
If, say, a justice believed being hosted on a yacht or in a private plane counted under “property or facilities,” then he may believe he’s in the clear with your omissions.
On the other hand, if Congress wanted to include “transportation” under the exemption definition in statute, they would have. They didn’t, meaning it should be reported.
Q: Did Justice Thomas’ non-disclosure of his non-vacation trips on Crow’s plane violate federal law?
A: Probably. Recall that ProPublica reported the Justice Thomas has used Harlan Crow’s plane at least twice in connection to events that were not vacation: once to fly to New Haven for an afternoon (2016) and once to fly to Dallas to swear in a lower court judge (2018).
It’s hard to misconstrue the personal hospitality exemption to include transportation that was not in service of hospitality. To quote the statute, “Personal hospitality means hospitality extended for a nonbusiness purpose,” and it’s likely both trips had a business purpose for Justice Thomas. Private plane travel here would count as a gift and should have been reported in Part V of his annual disclosure.
Q: Did Justice Thomas’ non-reporting of his real estate transaction with Crow violate federal law?
A: Yes. The law, 5 U.S.C. §13104(a)(5), plainly states: “…any purchase, sale or exchange during the preceding calendar year which exceeds $1,000 in real property…” must be reported. It doesn’t matter that Thomas believes he lost money on the sale of his mother’s house and the two vacant adjacent lots. (Per CNN, Thomas put “$50,000 to $70,000” into renovations of the house, and only got back one-third of the sale price, or $44,454, from Crow’s purchase.) The transaction in total and Thomas’ part were each greater than $1,000 dollars.
Q: Did Justice Thomas’ non-disclosure of his trips on Crow’s yacht and private plane violate tax law?
A: Unclear. On April 24, Sen. Ron Wyden sent a letter to Crow asking to clarify the extent of his gifts to Thomas, since the “unprecedented arrangement between a wealthy benefactor and a Supreme Court justice raises serious concerns related to federal tax and ethics laws.” The letter is intriguing, but seeing as how Fix the Court does not employ tax experts, we’ll await more information before making an assessment.
Q: When will Thomas update his disclosures?
A: CNN reported on April 17 that Justice Thomas “amend his financial disclosure forms to reflect a 2014 real estate deal he made with [Crow].” But the date of the update remains unknown. In the past, when a justice has updated his or her disclosure based on a Fix the Court discovery, it’s taken more than a year from the time an error was uncovered until the amended report was released to the public. Given the high-profile nature of the Thomas errors, it is doubtful that such a long time will elapse.
Q: What should Congress do in light of these Justice Thomas revelations?
A: Pass new laws. We like the Sen. Murphy-Rep. Johnson Supreme Court Ethics Act, the Sens. King and Murkowski Supreme Court Code of Conduct Act, and the Sen. Whitehouse-Rep. Johnson Supreme Court Ethics, Recusal and Transparency Act (SCERT), each of which would require the Supreme Court to adopt a code of conduct but would also require some transparency and accountability measures on top of that, namely a way for members of the public to file ethics complaints against the justices and requiring the Court to publish reports about the ethics issues the justices are facing.
But it’s not just a code and some form of enforcement that’s needed. The justices should have to follow the same rules on perks that lawmakers follow.
That already exists in a bill, as Section 3 of SCERT also states, “The Counselor [to the Chief Justice], with the approval of the Chief Justice, shall establish rules governing the disclosure of all gifts, reimbursements, and income received by any justice and any law clerk to a justice. Such rules shall at minimum require disclosure of any information concerning gifts, income, and reimbursements required to be disclosed under the Standing Rules of the Senate and the Rules of the House of Representatives.”
That covers a lot of ground in an economy of words.
Q: If Section 3 in SCERT above were to be expanded in a way that’s more prescriptive —and more exacting, given that the justice’s should have the most strict, not the least strict, rules— what might that look like?
To start, there should be an ethics office in the judicial branch comprising judges, justices and other officials with ethics expertise that can dispassionately and consistently give advice to judicial officers about the propriety of accepting gifts and travel. In other words, when a justice says, “I consulted with my colleagues” on an ethics issue, the public should know who the “colleagues” are.
On tangible gifts:
The justices should not be permitted to accept any gift greater than $50 in value, which is the limit for members of Congress, with the two exceptions being gifts from close family (within two degrees of relation) and gifts from colleagues, former colleagues or close friends on a special occasion, e.g., a new robe on the 10th anniversary of an investiture, so long as the former colleagues or close friends have not had business before the court for the prior two years and so long as the gift, if valued at more than $250, is cleared by the judicial ethics office.
On gifts of transportation, lodging, food and entertainment:
The justices should not be permitted to accept any of these from someone who has an open case before the court, or who represents a party or amicus on a brief in an open case, and there should be a two-year cooling off period between the conclusion of individual’s business before the court and when they can sponsor a justice’s free trip.
The personal hospitality exemption should have the same cap as that for an honorarium: no more than $2,000 may be spent by a close friend or family member on a justice’s travel, lodging, entertainment and food. Anything more than that, the justice has to kick in the rest.
Here’s how the acceptance of gifts from close friends and travel from third parties would work if the justices had the same rules as members of Congress:
— The justices would check with an ethics office before accepting any tangible gifts or gifts of travel from friends valued at more than $250..
— The justices would check with an ethics office before accepting gifts of transportation, lodging, food and entertainment valued at more than $250 from any source, save close family, and file a report with details.
— The sponsor of the transportation, lodging, food and entertainment would file a report with the ethics office more than 30 days before the start of a trip including the original invitation and stating the reason for the trip, the agenda and how much money is expected to be spent on the justice’s transportation, lodging, food and entertainment.
— The justice would file a report within 30 days of returning describing the events that took place and including the actual dollar amounts for their transportation, lodging, food and entertainment. This report would be made public as soon as it’s filed.