Ethics, the law and the Supreme Court (Part 2)
This is the second of two posts exploring Common Cause’s request that the Justice Department review possible conflicts of interest involving Supreme Court Justices Antonin Scalia and Clarence Thomas and our complaint to the U.S. Judicial Conference concerning errors in Justice Thomas’ annual financial disclosure statements.
In mid-January, as Common Cause looked into Justice Scalia’s and Justice Thomas’ attendance at private political strategy and fundraising meetings hosted by Koch Industries, a Common Cause legal fellow discovered a startling omission from Justice Thomas’ annual financial disclosure forms: though the employment and political activism of the justice’s wife, Virginia “Ginni” Thomas, was no secret, the justice had failed to report her work on Capitol Hill for then-Rep. Dick Armey in the mid-1990s, for the Heritage Foundation from 1998-2007, and for Hillsdale College in 2008.
Like other federal officials, justices are required to report the sources of “non-investment” income earned each year by their spouses. It’s the law, part of the Ethics in Government Act of 1978, and it seems clear that Justice Thomas was in violation.
We reported the situation to the U.S. Judicial Conference, the agency that collects judicial disclosure forms, and within hours Justice Thomas filed amended forms noting his wife’s employment. His omissions, stretching over 20 years, were inadvertent, the justice explained.
The Ethics Act carries both civil and criminal penalties for anyone who “knowingly and willfully falsifies” or fails to file a disclosure report. The maximum penalty is a $50,000 fine and one year in prison.
So, should Justice Thomas be prosecuted? And if the answer is yes, can he be prosecuted – given that he holds a lifetime appointment and can be removed from office only through impeachment?
Thomas certainly could be prosecuted, even while remaining on the bench. In the early 1990s, Alcee Hastings Jr., a federal district judge in Florida, was indicted by a grand jury and tried on bribery charges. He stayed in office through his trial and was acquitted by a jury, then was impeached by the House and removed from office by the Senate. Hastings ultimately turned to politics and won election to the House in 1992; he is still serving there.
Whether Thomas should be prosecuted is a question first for the Judicial Conference, the agency that collects the disclosure forms, and then for the attorney general. The Ethics Act says if the conference determines that disclosure errors or omissions were knowing and willful, it can refer them to the attorney general for prosecution.
—This post was written by Arn Pearson, an attorney who serves as Common Cause’s vice president for programs, and Dale Eisman, senior writer/researcher.