How many scandals will it take for DOJ to investigate Clarence Thomas?

Let’s get this straight: If a state legislator accepts so much as a sandwich, they must disclose it. I know; I served in local government for 14 years. 

So it’s been very difficult to understand how Supreme Court Justice Clarence Thomas has gotten away with accepting free trips on superyachts and private jets belonging to a billionaire, Harlan Crow, not to mention a sweetheart real estate deal with that same billionaire, without disclosing them. For years.  

Nevertheless, that is apparently what happened. And now that it’s all come to light, the party should be over for Thomas. I say should because while there is a lot of talk about accountability, it’s been less clear how that will come to pass. Thomas has resisted calls to resign. Impeachment seems highly unlikely given the Republican leadership of the House. Senate hearings may happen, and that’s a positive step.  

Fortunately, there are also other options, including one very good one with solid legal underpinnings: a Department of Justice (DOJ) investigation under federal statutes that require disclosure of the kind of perks Thomas has enjoyed, and also authorize penalties for violators.  

The DOJ should investigate Thomas’s unethical and possibly illegal violations without delay.  

Many analysts have pointed out that federal ethics law, which applies to federal officials in all three branches, including Supreme Court justices, has long required disclosure of gifts on a form that must be submitted every year. Congress enacted the statute after Watergate to help safeguard against ethical violations by federal officials. The law defines “gift” as the receipt of money or “anything of value,” including “overnight lodging.”  

So far, so good. But the real kicker, in this case, is a part of that federal statute, 5 U.S. Code 13101, 13104, and 13106(a), that authorizes the Justice Department to pursue both civil penalties and criminal fines from government officials who fail to report gifts as required.  

The fines are not large. But even more important than the cash penalty would be the significance of a finding of guilt by the Department of Justice. There would be enormous pressure for a Supreme Court justice to step aside or be removed if that person were found guilty of a crime while in office. It took far less than that for Justice Abe Fortas to step down back in 1969 amid allegations of financial impropriety.  

Thomas has claimed that luxury trips and stays he enjoyed for free were “personal hospitality” not subject to reporting requirements. This strains credulity. Even if some of the food and fun could be explained away as an exception to reporting rules, certain other perks cannot. Free use of Crow’s private jet for Thomas’s personal travel is one example; all you have to do is read the reporting requirements to see that they clearly do not include this kind of free transportation in the “personal hospitality” exception. 

As for the real estate deal, Thomas has belatedly announced he will look at updating his disclosure forms. That’s … fine. 

As unsavory as all this is, it’s also not out of character. Thomas and his wife have been at the center of all kinds of ethics scandals for years. It has gotten very disheartening, even disgusting, to watch the never-ending Thomas carnival of corruption bring shame on the Supreme Court. It’s time for it to stop. 

There is a larger conversation to be had about how badly we need an enforceable code of ethics for the Supreme Court to prevent any number of possible transgressions by justices now and in the future. And there is a growing call to expand the court to recapture public trust and counteract what it has become: an institution with a reactionary majority created by unethical and even outright corrupt means. That too is a larger conversation. 

But for now, there is a clear path to holding Clarence Thomas accountable. His actions are unquestionably inappropriate, and the Justice Department has the grounds and the legal authority to investigate and determine whether they are inarguably illegal. It should use that power as it was intended.  

And if Thomas is guilty, DOJ should throw the book at him.  

 Svante Myrick is the president of People For the American Way. Previously, he served as the organization’s executive director and led campaigns focused on transforming public safety, racial equity, voting rights and empowering young elected officials. Myrick garnered national attention as the youngest-ever mayor in New York State history.