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Legal questions remain that Clarence Thomas can answer under oath

The beleaguered justice’s statement doesn’t settle the issues raised by the stunning ProPublica report about his alleged ethical failures.


Did Supreme Court Justice Clarence Thomas break the law? Maybe — and the fact that it’s a possibility is reason enough to investigate further.

ProPublica’s bombshell report last week detailed Thomas’ failure to report years of lavish trips paid for by Republican billionaire Harlan Crow. In it, the nonprofit outlet quoted legal experts who suggested that those reporting failures broke a post-Watergate financial disclosure law.

In a rare statement Friday, the justice contested that he broke the law. Here’s what he said, in part:

I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable. I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines. These guidelines are now being changed, as the committee of the Judicial Conference responsible for financial disclosure for the entire federal judiciary just this past month announced new guidance. And, it is, of course, my intent to follow this guidance in the future.

So, what change in the guidelines is he talking about? The old ones said judges and justices don't need to report personal hospitality that's extended “at the personal residence of that person or his family or on property or facilities owned by that person or family.” Well, how does travel on private jets, for example, fit into that definition? Legal experts told ProPublica that those, at least, wouldn’t have been covered by the previous reporting exemption.

Thomas effectively concedes that his reporting failures would have run afoul of the new guidelines — which, going back to the private jet example, now explicitly state that “transportation that substitutes for commercial transportation” is not exempt from reporting. Of course, that doesn’t mean that it was exempt before — only that there’s no question that it’s not exempt now.

But all this legal parsing does is underscore the need for further action. Senate Democrats on the judiciary committee have said that they are going to act, including by holding hearings.

Here are just a handful of questions for Thomas for which it would be good to know answers:

  • Does the ProPublica report detail the full extent of gifts that Crow gave you over the years? If not, what are the others?
  • Are there any undisclosed gifts from other individuals or businesses that you have failed to report? If so, what are they?
  • You said that you “sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality ... was not reportable.” Who advised you? Did you tell them everything that Crow gave you? How did you define private jet travel under the previous rules when you decided you didn't need to report it?
  • You said that you “have always sought to comply with the disclosure guidelines.” Have you ever failed to do so? If so, when?

Answers submitted by Thomas under oath to these questions and others can help lawmakers strengthen any new disclosure requirements that they consider passing in the light of this latest scandal. And if congressional investigation reveals specific wrongdoing by Thomas under the old rules, then of course that’s worth finding out, too.

But this is all beside the point if there’s no real enforcement mechanism for whatever the rules are. Thomas said in his statement that it’s his “intent to follow this guidance in the future.” Perhaps a more important question is, if he doesn’t follow the rules in the future, what happens then?