Clarence Thomas Avoids DOJ Referral Evoking George Costanza Defense

There’s an episode of Seinfeld the place George has intercourse with a cleansing woman on his workplace desk and when confronted responds, “Was that fallacious? Ought to I’ve not performed that?” However, since Seinfeld extra intently tracks a universe the place actions have logical penalties, George obtained fired and Clarence Thomas will get to plead ignorance a couple of almost five-decade-old regulation.

Thomas, who has forgotten extra holidays than you’ll ever know, has been the topic of a Senate Judiciary inquiry ever since ProPublica first recognized round half 1,000,000 in luxurious journey and presents with out disclosing any of it as legally required by the Ethics in Authorities Act of 1978. Alongside the best way, we’ve realized about free tuition, free housing, and an RV (which could even have been free). The legislators wrote the Judicial Convention asking the Article III establishment to do its job beneath the statute and refer Thomas to the Division of Justice. Nearly two years after the very fact, the Convention has determined to do nothing as an alternative.

In a letter from the Judicial Convention to Senator Sheldon Whitehouse, Secretary of the Judicial Convention Choose Robert Conrad mentioned that they’d determined towards doing something as a result of Thomas was most likely simply confused about learn the plain that means of a regulation. A believable excuse based mostly upon his jurisprudence usually, however extremely suspect right here.

In March and April 2023, the Monetary Disclosure Committee, with the approval of the Judicial Convention, issued steering that the private hospitality reward reporting exemption applies solely to meals, lodging, or leisure. The exemption, it defined, doesn’t apply to presents of “transportation that substitute[] for industrial transportation,” presents “prolonged for a enterprise objective,” or presents “prolonged at a industrial property, e.g., a resort or restaurant, or at a property that’s repeatedly rented out to others for a enterprise objective.” The Monetary Disclosure Committee, usually talking, doesn’t apply new steering retroactively to beforehand filed studies.

That is the “I didn’t hear anybody say ‘Simon Says’” of excuses.

The issue with “not apply[ing] new steering retroactively,” is that presumes there’s one thing “new” concerning the steering. Nobody was really confused over the scope of this exception earlier than this. Nobody thought an exception for crashing in your faculty roommate’s sofa was the identical as “having a billionaire give your mother a home lease free.” Elena Kagan thought a fucking bagel basket from her highschool classmates put her in breach of this regulation! Everybody knew!

Extra to the purpose, when a few of the allegations on this matter embody auto mortgage forgiveness shenanigans and off-the-books funds, there’s greater than somewhat to counsel that Thomas knew. Not less than sufficient suggestion that the case would profit from a DOJ inquiry.

“Not solely do presidents have absolute immunity from prosecution for violating the regulation, however now Supreme Court docket justices get pleasure from immunity for law-breaking, as properly,” defined Repair the Court docket’s Gabe Roth. “That’s as shameful as it’s opposite to the plain-text studying of the monetary disclosure regulation, which units clear tips concerning the forms of presents that have to be reported — which Justice Thomas has clearly and regularly violated through the years — and consists of actual penalties for violations.”

Alas, the Convention defined that Thomas has made some adjustments so everybody ought to simply chill.

Justice Thomas has filed amended monetary disclosure statements that tackle a number of points recognized in your letter.

“A number of” is conspicuously not “all.”

Which can sound like nitpicking, however legal professionals — particularly judges — aren’t informal with phrases like these. When he says, “a number of” he means “not all” and it will be attention-grabbing to get extra readability on simply what it doesn’t embody.

However even when the Convention hadn’t discovered a technique to excuse Thomas as confused, the letter suggests they may have tried to keep away from their authorized obligations the quaint manner by declaring the Supreme Court docket exempt from any penalties:

First, the Judicial Convention has by no means taken a place on whether or not its referral authority beneath 5 U.S.C. § 13106(b)—to refer judges to the Lawyer Basic for investigation into whether or not they have “willfully” violated their reporting obligations—applies to Justices of the Supreme Court docket of america. The query, to be clear, just isn’t whether or not the Ethics in Authorities Act applies to the Justices of the Court docket. It’s whether or not the Judicial Convention’s referral authority applies to the Justices. There may be cause to doubt that the Convention has any such authority. As a result of the Judicial Convention doesn’t superintend the Supreme Court docket and since any effort to grant the Convention such authority would increase critical constitutional questions, one would count on Congress at a minimal to state any such directive clearly.

To not get all originalist, however that is hogwash. Roth explains, “The Convention writing the justices out of a lot of the disclosure regulation can be ahistorical, because the regulation was drafted shortly after two justices have been discovered to have accepted exterior — and arguably unethical — earnings. ”

However, as Chief Justice Roberts defined earlier this week, it’s fallacious to level out that your judicial emperor wears no garments.

(Letter on the subsequent web page…)

Earlier: Clarence Thomas Has Forgotten Extra Holidays Than You’ll Ever Know
Senators Beg Merrick Garland To Do His Job And Examine Clarence Thomas
If You’ve Appreciated The Service You’ve Acquired, Contemplate Tipping Your Supreme Court docket Justices!
Clarence Thomas Took EVEN MORE Free Journeys On Personal Planes That He’s Nonetheless Not Disclosed!

Joe Patrice is a senior editor at Above the Legislation and co-host of Pondering Like A Lawyer. Be at liberty to e mail any ideas, questions, or feedback. Comply with him on Twitter or Bluesky when you’re excited about regulation, politics, and a wholesome dose of faculty sports activities information. Joe additionally serves as a Managing Director at RPN Government Search.