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Why Clarence Thomas’s Troubles Have Just Begun

Two of the more aggressive Senate Democrats are asking Thomas and Harlan Crow questions. And they have a lot of ways to get answers.

Paul Morigi/Getty Images
Justice Clarence Thomas and his wife, Ginni Thomas, at the White House in 2019

The scandal that forced Abe Fortas’s resignation from the Supreme Court in 1969 revolved around $20,000 he had accepted from the family foundation of an indicted financier (he returned the money). That $20,000 would be around $167,000 today.

I mention this because I wonder a lot these days about the dollar value of Harlan Crow’s gifts to Clarence Thomas. ProPublica reported, for example, that Thomas flew around on Crow’s jet. A chartered private jet can cost anywhere from $2,000 to $18,000 per billable hour. If we split the difference and say $10,000, Thomas would need to have spent just 16 hours on Crow’s plane over the years to get up into Fortas country (and we know of at least one trip to distant Indonesia, which also included nine days of island-hopping on a 162-foot yacht).

But we don’t know the full extent of Crow’s gifts to Thomas, of course, because Thomas and Crow refuse to say. On April 24, Senate Finance Committee Chairman Ron Wyden wrote to Crow asking him to detail all his gifts to Thomas (the letter notes, for example, that the market value of island-hopping on a yacht like Crow’s is $245,000 a week). More recently, the Democrats on the Senate Judiciary Committee made a similar request.

The requests have been greeted as you’d expect. Thomas says these gifts were “personal hospitality,” not business, and thus didn’t have to be reported. Crow responded to Wyden’s letter with a letter of his own, or more specifically from his lawyer, arguing in essence that Congress has no legitimate legislative purpose in exposing Crow’s gifts to Thomas and is constrained by separation of powers issues.

Sheldon Whitehouse of the Judiciary Committee has pursued a complementary angle. He asked the Judicial Conference, the policymaking body for federal courts, to reveal how it handled an inquiry into Ginni Thomas’s income in 2011. He too has received no answer yet.

Wyden and Whitehouse mean business. Whitehouse has been the Democrats’ point person in the Senate for years on these ethics matters. But of the two, Wyden spells more potential trouble for Thomas and Crow because as chairman of one of Congress’s tax-writing committees, he has what’s called 6103 authority: the power to ask for any citizen’s tax returns at any time for any reason (actually, under the relevant law, he wouldn’t even have to give a reason). Richard Neal, the Democratic chairman of the House Ways and Means Committee until the GOP retook the House this year, used this same law to get several years of Trump’s returns. In 2021, the Supreme Court ordered the IRS to give Neal’s committee Trump’s returns.

In other words, if the Supreme Court says that even the president’s tax returns can be sent to Congress, surely that means that anyone’s can be. Even if that person sits on the very Supreme Court that will be passing judgment.

There are certain downsides to invoking 6103 authority—namely, that once the request is made, the person doing the requesting can’t discuss the matter at all. But a source confirms that invoking that authority and requesting the tax returns of both Thomas and Crow is on the table.

Step back and think about that. A member of the United States Supreme Court is hiding from and stonewalling the United States Senate to such an extent that the latter might be compelled to order the release of his tax returns. And either the Finance or the Judiciary Committee might subpoena Thomas as well (now that Dianne Feinstein is back at work, the Democrats have their majority on Judiciary and could subpoena Thomas—that’s assuming Feinstein would agree, which strikes me as not a sure thing). The Senate has only ever subpoenaed a Supreme Court justice once, in the 1950s, when the House Un-American Activities Committee subpoenaed Justice Thomas Clark, but that was over something he had done in a previous position, not while on the court (Clark never appeared).

Clarence Thomas and his defenders say he’s done nothing wrong. Well, if he’s done nothing wrong, why not detail the extent of the gifts? I think it’s pretty obvious why. They must come to gargantuan sums. Supreme Court justices make only $265,600. You can’t expect a man of Thomas’s tastes and appetites to live on that. He has to fly first class and stay in five-star hotels and smoke the world’s finest cigars and sample its most complex cognacs. Hence Ginni has to rake in some dubious cash from organizations trying to influence her husband’s votes, and Clarence needs to live off the “personal hospitality” of people like Crow.

It’s my understanding that there’s more news coming on Thomas and Crow. It seems highly possible that what we know so far, ghastly as it is, barely scratches the surface. And Wyden and Whitehouse are going to keep at this. To paraphrase Churchill, this isn’t the end of the story. This is just the beginning of the end.