Senators Sheldon Whitehouse and Ron Wyden say they want the Justice Department to prosecute Justice Clarence Thomas. Congresswoman Alexandria Ocasio-Cortez says she wants to impeach both Thomas and Justice Samuel Alito. These are political disagreements dressed up in the clothing of criminal law. If taken seriously, they represent an ominous slide down the path of the authoritarian impulse to criminalize differences of opinion. At best, they are cynical campaign ploys aimed to distract from the implosion of the Biden presidency.
Enraged by the end of Roe v. Wade and other outcomes they dislike, progressive Democrats have been campaigning for the past several years to delegitimize or intimidate the Supreme Court’s majority by any means necessary. The rationales change, but the cause remains the same. So does the ultimate end: Court “reform” that either removes the current majority or swamps it with Court-packing. Not for them is the patient work of winning elections and legal arguments by which conservatives, Republicans, and other constitutionalists built this majority over four decades.
Whitehouse and Wyden have written a letter calling on Attorney General Merrick Garland to appoint a special counsel to investigate Thomas. There are many good reasons why this won’t and shouldn’t happen. The transparent flimsiness of their pretextual legal arguments speaks volumes about the real political motivations in attacking Thomas for being a faithful steward of the Constitution.
To start with, even the most political of Justice Departments look skeptically on requests for a criminal referral that are not endorsed by the proper congressional authorities. This is not a letter from the full Senate Judiciary Committee; neither its chairman Dick Durbin nor its ranking member Lindsey Graham joined the letter, which was not approved by a vote of the committee. Wyden is not even a member of the committee, and his own committee (Finance) likewise did not endorse the letter and has no jurisdiction over judicial ethics-disclosure rules. This is just two individual senators doing some election-year venting.
Whitehouse also claims that Justice Department regulations (which he misidentifies, citing instead an FDA customs rule) support appointment of a special counsel. When quoting the regulations, he omits the key text: They apply when “investigation or prosecution of [the] person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances.” Whitehouse doesn’t want to say why it would be a conflict of interest for the Garland Justice Department to investigate a Supreme Court justice whose rulings are frequently criticized by the president.
The first item on Whitehouse’s list is a loan from a friend to help Thomas purchase a used 1991 RV, which he bought in 1999. Thomas spent the next nine years making payments on the loan. As one would expect of a 25-year-old purchase of a 33-year-old vehicle and a 15-year-old conclusion to a loan, the surviving records are fragmentary. Even if Whitehouse and Wyden had some evidence of Thomas’s receiving an improper benefit by virtue of the loan (they don’t), any relevant statute of limitations would have run many years ago. Those limitations periods exist precisely because few people keep detailed records of all their finances for decades. No responsible prosecutor would ever even open such a stale investigation.
The bulk of the letter invokes the Ethics in Government Act to argue that Thomas violated federal criminal law by not disclosing gifts he received. Much of this relates to vacation travel with Thomas’s friend Harlan Crow, the financial value of which is persistently exaggerated. Given the Democrats’ supposed respect for the opinions of experts, they keep glossing over the fact that the Judicial Conference — which is statutorily authorized to interpret the statute for the benefit of the judicial branch — reviewed a 2011 complaint about Thomas’s travel with Crow and concluded in 2012 that personal hospitality such as staying at a friend’s house or accepting a ride from a friend need not be disclosed. When that interpretation later changed, so did his disclosure practices.
Whitehouse has elsewhere contended that the prior interpretation was wrong, and perhaps a court reviewing the statute afresh might agree. But a criminal charge requires willful nondisclosure, and following the governing body’s guidance while it remains in effect is a powerful defense, even for a judge. That reality also defeats Whitehouse’s effort to compare Thomas’s disclosures to those of executive-branch employees who were prosecuted for undisclosed gifts that did not comply with that branch’s governing guidance or for lying to investigators.
True, Thomas has occasionally had to amend his financial disclosures. He is hardly unique in that respect, even among the justices. There is a long lag time before reports are due, and the justices must file them at their busiest time of year. Justice Sonia Sotomayor, for example, amended her disclosures in 2022 to reflect six different trips taken six years earlier. Whitehouse has shown no similar interest in Joe Biden’s failing to list as gifts his family stays at the luxury homes of friends, such as in St. Croix or Nantucket.
If the Whitehouse-Wyden letter is a menace, the Ocasio-Cortez impeachment resolutions are a farce. The House has the power to impeach anyone for any reason it wants, but the justifications are ridiculous. The resolution against Thomas, after rehashing many of the same Ethics in Government Act grievances, goes further downhill. It misunderstands the recusal rules by claiming that a connection to someone who files an amicus brief requires a judge to recuse from a case. It claims that Thomas’s wife Ginni “had an interest” in cases about the 2020 election or January 6 investigations simply because she expressed opinions about that election to the White House chief of staff — a far cry from having a personal stake in such cases in the way that a defendant or a witness would.
Most egregiously, Ocasio-Cortez falsely claims that Thomas “abused his seat on our Nation’s highest court to promote the falsehood of massive voter fraud and to question the legitimacy of the 2020 Presidential election results.” Ocasio-Cortez then cites opinions in which Thomas and Alito did precisely the opposite, writing that they would not grant relief sought by the Trump campaign and that the number of votes that may have been illegally counted in Pennsylvania as a result of a court decision allowing late-arriving ballots “seems to have affected too few ballots to change the outcome of any federal election.”
Worst of all is the resolution seeking to remove Alito from the nation’s highest court on the basis that he “allowed” his wife to fly flags at their home and beach house, and that on this basis he should be recused from any cases even tangentially related to Donald Trump or January 6. An ethics complaint involving a ride to a fishing trip 16 years ago is tacked on at the end just for ballast.
Make no mistake: As desperate as these stunts are, Whitehouse, Wyden, and Ocasio-Cortez are signaling that they would gladly abuse the power of the criminal law if that is what is necessary to bend the courts their way. That way lies anything but the rule of law.