On Thursday, with Labor Day weekend approaching, news broke the way it can when political insiders want to get out an unflattering story when most people aren’t paying attention. Supreme Court Justice Clarence Thomas had filed multiple corrections of his repeated errors in the financial reporting forms that the 1978 Ethics in Government Act requires.
There’s something curious about the amended form. It features substantial explanation of Thomas’s private flights, but nothing about yacht trips and other exotic vacations. It seems likely that this story doesn’t end with last Thursday’s amended financial disclosure form from Thomas.
For now, Thomas’s amended report disclosed three 2022 private plane trips paid for by conservative billionaire Harlan Crow and a stay in 2022 at Crow’s Adirondack mega-lodge. Thomas also amended prior years’ reports. He has now confirmed the 2014 sale to Crow of Thomas’s mother’s home, where she continues to live, first reported on Aug. 10 by ProPublica. In addition, there were amendments for a previously unreported life insurance policy and bank account.
As for the yacht trips, let’s go back to April.
In a thoroughly sourced expose, ProPublica reported that, among many other gift trips from conservative billionaires, Thomas and his wife spent nine days traveling in Indonesia on “a superyacht staffed by a coterie of attendants and a private chef” with Crow.
In August, ProPublica reported a complimentary “voyage around the Bahamas” on a superyacht owned by billionaire Paul Novelly. According to ProPublica, the ship is “a 126-foot luxury vessel complete with a full bar, multiple dining areas, a baby grand piano, accommodations for 10 guests and a handful of smaller fishing boats and jet skis.”
Thomas has not denied either report. But he didn’t include the pre-2022 yacht cruises on his new corrected financial disclosure forms. In fact, he didn’t even mention them. Nor did he mention multiple other land-based vacations that ProPublica reported were gifted to Thomas.
The lack of any reference to them differs from paragraphs his amended form devotes to explaining why it includes reporting of free private jet flights and Adirondack lodging for 2022. As to the years before 2022, Thomas’s amended report expends considerable energy explaining the nondisclosure of the private jet flights.
His just-released form asserts that, in 2006, the Judicial Council advised Judge Raymond Randolph that private flights needn’t be disclosed based on the Ethics in Government Act’s hospitality exemption.
Was Judge Randolph’s situation different from Thomas’s because Randolph’s benefactor had no business before his court? On April 7, Thomas defended himself by saying there was no need to report flights in that situation. But two weeks later, Fortune Magazine reported that Crow did have business before the Supreme Court while Thomas served.
Putting that aside, let’s look at Thomas’s apparent rationale for not disclosing such flights before 2022. The Ethics in Government Act’s hospitality exemption states that gifts of “any food, lodging, or entertainment received as personal hospitality of an individual need not be reported.” The Act defines “hospitality” as that extended “for a nonbusiness purpose at [an individual’s] personal residence … or on property or facilities owned by that person.”
In March 2023, the Judicial Council issued new guidance specifying that “hospitality” does not include “transportation that substitutes for commercial transportation.” Hence, Thomas apparently felt compelled to amend his 2022 filing to report the private flights he took courtesy of Crow that year, but continued to believe he had no obligation to disclose such gifts before 2022.
As for complimentary yacht excursions or far-flung gifted holidays, we don’t know if Thomas took any in 2022. But since he hasn’t denied the yachting trips of the past, you might be asking why he did not report them before 2022. It wouldn’t hold water to claim that yacht trips were merely “substitutes for commercial transportation” the same way that private flights were.
Notably, for 2022, Thomas does disclose, for the first and only time to date, his summer stay at Crow’s Adirondack lodge. Thomas’s amended form explains that he has reported his stay in 2022 — and only for 2022 — “in compliance with the new guidance and, according to advice from the staff of the Judicial Conference Financial Disclosure Committee (July 10).”
Unless I’ve missed something, we don’t yet know what the July 10 Judicial staff advice was. We don’t know, for example, whether it included guidance on reporting of yacht trips or other vacations on properties owned by a benefactor. The latest published information from the Judicial Council on gift reporting I could find was in March 2023.
What’s missing in Thomas’s reference to July staff advice is any discussion of whether the July staff advice included guidance about the highly publicized yachting excursions. That’s striking when compared to the other explanations in the amended report about private flights.
Those explanations even include an apparently gratuitous statement in Thursday’s amended form of why Justice Thomas was flying privately after May 2022: “Because of the increased security risk following the Dobbs opinion leak,” Thomas explains, “the May flights were by private plane for official travel as filer’s [i.e. Thomas’s] security detail recommended noncommercial travel whenever possible.”
Absent any legal requirement to provide that explanation in the form, it looks to have been included as a matter of public relations to excuse Thomas’s privileged flying based on necessity. (Never mind the 26 private flights before the May 2022 Dobbs leak which Thomas has not disclosed.)
Given both the explanation for taking private flights in 2022 and for not disclosing them before 2022, the lack of any explanation for not disclosing the yacht trips screams out.
Is Thomas resting his non-disclosure on the premise that yacht trips and other exotic vacations involved “lodging … received as personal hospitality” that was “on the property or facilities owned by that person” extending the “hospitality”? Is that the private advice that the Judicial Council staff gave? If so, why didn’t he say so?
Let’s be blunt. It would make a complete mockery of the Ethics in Government Act to conclude that billionaires bestowing opulent oceangoing or other exotic vacations on a Supreme Court justice need not be publicly reported.
Then again, judicial staff apparently not requiring judges to report free private flights before 2022 seems a tad counterintuitive.
Given Thomas’s reference to the July 10 staff advice to him, don’t be surprised if, before long, some enterprising reporters or lawyers deploying the Freedom of Information Act discover the contents of that advice. Or perhaps the Senate Judiciary Committee will do so.
This saga may not be over.
Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy.