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Clarence Thomas Skated On Ethics Complaints In 2012... Meaning He Definitely Already Knew The Rules

You can really only use 'I didn't know' as an excuse one time.

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Justice clarence Thomas Attends Forum On His 30 Year Supreme Court Legacy

(Photo by Drew Angerer/Getty Images)

If you had “federal judiciary knew about Clarence Thomas and shady finances over a decade ago” on your “what will we find out next Bingo card“… congratulations! While everyone continues to marvel at the depth of the ethical morass surrounding Clarence Thomas — which now includes hundreds of thousands in vacations, free housing for his mom, private school tuition, and under-the-table payments to his wife — Bloomberg reports that the federal judiciary actually had prior warning about some of this back in 2012 and, in keeping with its established sense of ethical propriety, shrugged and ignored it.

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. [US District Judge Mark] 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.

An important note on timing: when Leonard Leo used Kellyanne Conway as a bag man to funnel “another 25K” to Ginni Thomas with the critical instruction “No mention of Ginni, of course,” that was 2012. The failure to properly report Ginni’s income prompted this scrutiny in 2011 and the Federalist Society pooh-bah’s response to the controversy was just to move the payments under the table. But you’ve got to give Leo some credit because unlike the Judicial Conference, at least he did something in response to the revelations.

Instead, the financial disclosure committee of the Conference decided that it was not “willful” and didn’t report anything about their inquiry to the rest of the Conference. Judge Wolf disagreed, describing the allegations as a “series of material omissions.” The thing is, Judge Wolf wasn’t even gunning for Thomas — he’s a straight-laced Reagan-appointee himself — he’s just a guy who appreciates ethics trapped in a judiciary that doesn’t seem to care.

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.

While impeachment is a pipe dream at this point and resignation would require Thomas to have a modicum of shame, the Department of Justice can, upon referral from the Conference, bring a civil case against officials violating the financial disclosure requirements to the tune of $50K for failing to file. If it turned out that Thomas falsified a record as opposed to merely willfully failing to report, a one-year prison term is possible.

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Willfulness can be hard to prove… unless someone was subject to an ethics complaint a decade ago over the exact same behavior. Easily the most damning takeaway from the report is that Thomas was placed on notice that he improperly failed to disclose income and only skated because the committee decided it was not willful. Given that warning, the defense that “my friends told me it was okay not to fill out these forms” rings decidedly piss-ass.

What’s the Judicial Conference poised to do this time? It can’t rightly blow the recent allegations off for lack of willfulness given the record. Does the current Conference membership possess the requisite backbone to send a referral to Merrick Garland?

Given the state of the federal judiciary, the answer is probably no.

Justice Thomas Ethics Review Queried by US Court Leader in 2012 [Bloomberg Law News]

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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