Lawmakers seek special prosecutor for criminal investigation in Clarence Thomas case

The measure marks a significant intensification of efforts by Democratic senators to ethical controversies surrounding Thomas and the court in recent years.

Whitehouse’s aides said it was likely the first time someone had appointed a special counsel to investigate a Supreme Court justice. Whitehouse is a member of the Senate Judiciary Committee, while Wyden chairs the Senate Finance Committee.

Special counsels are generally appointed when the attorney general wants to assure the public that a sensitive investigation is being conducted fairly and free of political considerations. Garland has appointed three special counsels during his tenure to oversee investigations into former President Donald Trump, President Biden and the president’s son, Hunter Biden.

“We do not make this request lightly,” Whitehouse and Wyden said in a statement. “The evidence gathered to date clearly indicates that Judge Thomas has committed numerous willful violations of federal ethics and false statements laws, and there are significant doubts about whether he and his wealthy benefactors have complied with their federal tax obligations.”

Thomas and his attorney, Elliot S. Berke, did not immediately respond to requests for comment, but Berke had previously stated that Thomas had attempted to comply with then-current disclosure requirements regarding financial gifts and travel.

“Judge Thomas has always strived for complete transparency and compliance with the law, including with respect to what personal travel must be reported,” Berke said in a statement last year, calling any failure to disclose travel “completely unintentional.”

Whitehouse and Wyden said they wanted to hire a special counsel to investigate a $267,000 loan Thomas took out in 1999 to buy a luxury coach. A Senate Finance Committee investigation concluded that a significant portion of the loan had been forgiven by Thomas’s friend and businessman Anthony Welters in 2008. The committee found that Thomas had failed to report the loan on his financial returns, raising questions about whether he had reported it as income on his tax returns as required by law.

Whitehouse and Wyden said they did not receive adequate answers from Thomas about how he handled the matter. Thomas has not commented publicly on the loan, but Welters told the Post last year that he believed that Thomas had “paid back the loan.”

The senators also want the special counsel to investigate several instances of air travel, yacht trips, home renovations, college tuition, tickets to luxury sporting events, lodging and other gifts that Thomas did not disclose in his annual financial filings. The gifts were reported in a series of articles by ProPublica last year. Many of the items were paid for by Harlan Crow, the Texas billionaire, friend of Thomas and major Republican donor.

In addition, the senators want the special counsel to investigate $25,000 in consulting fees that conservative justice activist Leonard Leo paid to Thomas’ wife, Virginia “Ginni” Thomas. The payment was first disclosed by the Washington Post last May. Some ethics experts said it raised questions about whether Thomas should have recuse himself from certain cases. Neither Clarence nor Ginni Thomas responded to requests for comment on the payment at that time.

The senators said the failure to disclose the gifts and payments may have violated a federal law that requires government officials to disclose gifts, loans and other benefits. They also want to know whether Thomas’s patrons paid gift taxes and whether Leo’s payment to Ginni Thomas was part of a coordinated gift scheme or whether additional disclosures were required by the judge.

Last month, the White House and Representative Hank Johnson (D-Georgia) asked officials of the U.S. Judicial Conference, which oversees judicial ethics issues, to explain how they are handling the revelations about Thomas. They have not yet received a response. The lawmakers had previously asked the conference to refer Thomas to the Justice Department. for possible ethical violations.

The latest move by Whitehouse and Wyden comes after the Senate Judiciary Committee revealed last month that Thomas took three flights paid for by Crow that he did not disclose. The trips took place between 2017 and 2021. Berke said Thomas was not required to disclose the trips because they occurred before the Supreme Court clarified its own ethics rules to require free trips to be reported as gifts. Thomas reported three trips on Crow’s jet in 2022 after the policy change.

Justice also revised its 2019 financial disclosures last month to include accommodation and other expenses paid by Crow during Traveling to Bali and a club in California.

During the current term, ethical controversies were once again a major issue at the Supreme Court.

The Justice Department declined to comment on the request to appoint a special counsel.