More than a decade ago, a member of the US court system’s leadership body raised red flags about its handling of public allegations of wrongdoing against Supreme Court Justice Clarence Thomas.
(Bloomberg) — More than a decade ago, a member of the US court system’s leadership body raised red flags about its handling of public allegations of wrongdoing against Supreme Court Justice Clarence Thomas.
Those concerns spurred internal process changes, but no additional probe of the justice’s conduct. Now, under renewed pressure following reports about the justice’s relationship with a GOP megadonor, the judiciary’s governance arm is again being asked to investigate one of its most powerful colleagues.
US District Judge Mark Wolf’s 2012 protest, which hasn’t been previously reported, sheds new light on long-running concerns that the federal judiciary’s process for enforcing financial reporting rules is inadequate.
This system, designed to serve as a check on corruption, is under a microscope amid a barrage of new information about Thomas’s undisclosed financial ties to Texas billionaire Harlan Crow.
In 2011, Thomas had come under scrutiny for failing to report years of income earned by his wife, Ginni Thomas, a conservative political consultant and activist. Wolf repeatedly expressed concern that the Judicial Conference of the United States, the judiciary’s policymaking body, was being kept in the dark and shut out from potentially doing its own review of the complaints, according to letters, internal reports, and other materials reviewed by Bloomberg News in addition to two people familiar with the matter.
Thomas has been the subject of reporting by ProPublica about years of undisclosed private plane and yacht trips he accepted from Republican megadonor Crow, property Crow purchased from the justice and his family, and private school tuition that Crow paid for Thomas’s grandnephew.
Much like in 2011, the latest controversy surrounding Thomas has sparked a national debate over how the judiciary enforces ethics rules and the Supreme Court’s lack of a binding code of conduct. Mirroring the events that led to Wolf’s objections, Democrats in Congress and public interest groups have asked the Judicial Conference to investigate Thomas.
In 2012, the judiciary committee responsible for enforcing financial reporting rules cleared Thomas of “willful” wrongdoing, but hadn’t reported information about the complaints or the resolution to the conference because they considered it a “routine” matter. At the time, Wolf questioned whether that was appropriate.
The veteran Massachusetts jurist’s objections ultimately didn’t lead to a formal review of Thomas’s conduct by the conference. But they did prompt the committee to share information with the leadership body about how it resolved the 2011 complaints.
It also spurred a change in the process that should formally notify the conference of the latest complaints against Thomas and how they’re handled. What the conference does with that information is an open question.
Wolf declined to comment.
“Material omissions”
In January 2011, government watchdog group Common Cause revealed that Thomas hadn’t reported hundreds of thousands of dollars earned by Ginni Thomas. Thomas then filed years of amended reports. He explained that his wife’s income was “inadvertently omitted due to a misunderstanding of the filing instructions.”
That fall, congressional Democrats and advocacy groups urged the Judicial Conference to investigate, discrediting Thomas’s explanation.
The 27-member leadership body, led by Chief Justice John Roberts, features all federal appeals court chief judges, the chief of the Court of International Trade, and a rotating group of district court judges.
Wolf, confirmed in 1985 under former President Ronald Reagan, was serving a term on the conference and the chief judge of his court. He protested in private conversations, letters, and in-person to his colleagues that the financial disclosure committee hadn’t shared any information with the leadership body about the complaints against Thomas, let alone what action, if any, it had taken.
Wolf said he found some of the 2011 letters from Congress and public interest groups requesting investigations into Thomas “on the internet” in February 2012, according to an August letter he wrote to a group of judicial conference colleagues that was viewed by Bloomberg.
After asking a judiciary official for information, he was informed about the committee’s findings – that there was no evidence of “willful” misconduct by Thomas and no further action was needed. He was informed about the committee’s process and findings, according to the letter.
The committee’s chair, Judge Joseph McKinley, the chief judge of the western district of Kentucky, told Wolf that staff felt it was a “routine” matter that didn’t need to be reported to the conference. Wolf described it in another August 2012 letter to a judiciary official as a “series of material omissions.”
Wolf’s letters that year don’t indicate that he had an opinion about whether or not Thomas committed misconduct. The root of his concern, he explained, was that federal law required the Judicial Conference to refer a case to the US attorney general for investigation if it had “reasonable cause” to believe a violation had taken place. He questioned whether the body could fulfill that responsibility if it wasn’t aware of complaints at all.
“I believe that the matter involving Justice Thomas raises issues that the Judicial Conference should discuss promptly,” he wrote. Those issues included whether the committee should be required to report these types of complaints to the conference “so there can be an opportunity for discussion and possibly decision.”
The attorney general can bring a civil case against an official accused of “willfully” violating financial disclosure requirements. The offense carries a penalty of up to $50,000.
Raising objections
As Wolf pushed for more information, Judge Thomas Hogan – a federal district judge in Washington serving as director of the judiciary’s administrative arm – sent a letter to members of Congress in April 2012 indicating the matter was closed. The disclosure committee had found no evidence that Thomas acted “willfully” or “improperly,” Hogan wrote.
Wolf said he didn’t learn about the April letter until later in the year, when he asked a judiciary official why the materials being circulated ahead of the conference’s September meeting still didn’t mention the Thomas complaints. Wolf asked to put the matter on the agenda, citing concerns about how “issues presented to the Conference have been addressed on its behalf.”
At the meeting, Wolf proposed rejecting the disclosure committee’s latest report unless it addressed the Thomas complaints. He referenced concerns Common Cause had raised about Ginni Thomas’s income as well as the justice’s reimbursed travel from a wealthy friend. The advocacy group and members of Congress had alerted the conference about a 2011 New York Times article about his friendship with the justice, but it’s not clear whether Wolf named Crow in the meeting.
Another member of the conference seconded Wolf’s motion to reject the report – a sign the Massachusetts judge wasn’t alone in his concern. Judge David Sentelle, the chief judge of the DC Circuit and head of the conference’s executive committee, then successfully moved to table the issue and send it back to the committee.
In a statement, Supreme Court spokesperson Patricia McCabe said that Roberts became aware of Wolf’s concerns the day before the conference met, and invited a discussion at the meeting where both Wolf and McKinley spoke. McCabe said that Roberts only votes on conference motions in the event of a tie and didn’t vote on the motion to postpone the issues raised by Wolf. The motion was “overwhelmingly adopted,” McCabe said.
By the time the Judicial Conference met in March 2013, Wolf’s term had ended. The financial disclosure committee submitted a report defending its process. It sent a separate letter to conference members with information about the handling of the complaints against Thomas. The conference didn’t take additional action.
The committee also said it had adopted a procedure change to notify the conference about any future “written public allegations” and how those would be handled.
Judge Hogan declined to comment. Judges Sentelle, McKinley and a spokesperson for the Administrative Office of the United States didn’t respond to requests for comment.
New complaints
The latest demands for investigations into Thomas’s conduct are now before the financial disclosure committee.
The policy change that resulted from Wolf’s objections is presumably still in place; a judiciary spokesperson didn’t immediately respond to a request for clarification. If the policy remains in effect, this means that whatever the committee does will be reported to the Judicial Conference. The conference isn’t obligated to take action, but committee reports provide an opening for members to put issues on the agenda.
It’s also not clear how much of this process will become public. The Judicial Conference’s biannual meetings are closed. The judiciary publishes a summary of the meetings, but doesn’t typically release the underlying committee reports.
The latest Thomas controversy also has renewed interest in what happened in 2011 and 2012. Democratic Senator Sheldon Whitehouse last month sent a letter to the judiciary seeking more information, saying that the public record of the Judicial Conference’s activities at the time wasn’t clear.
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