Why an investigation into the Clarence Thomas case is unlikely

Attorney General Merrick Garland is unlikely to appoint a special counsel to investigate Supreme Court Justice Clarence Thomas, legal experts said News week.

Senators Sheldon Whitehouse and Ron Wyden announced Tuesday that they are seeking a criminal investigation into allegations that Thomas failed to disclose gifts, luxury trips, a loan for a luxury coach and other benefits from wealthy friends. Then on Wednesday, Representative Alexandria Ocasio-Cortez introduced articles of impeachment against Thomas and Samuel Alito.

Whitehouse, a member of the Senate Judiciary Committee, and Wyden, chairman of the Senate Finance Committee, cited news reports and their own Senate investigation in their letter, saying evidence suggested Thomas had “secretly accepted potentially millions of dollars in gifts and income” since taking office on the nation’s Supreme Court.

Their letter says a special counsel is investigating a $267,000 loan that Thomas used to buy a luxury coach in 1999. Thomas failed to disclose the forgiven debt in his ethics statements and did not provide satisfactory answers about his handling of the matter, they said. The special counsel is also investigating undisclosed gifts that Thomas received from Republican major donor Harlan Crow and other wealthy benefactors.

“We do not make this request lightly,” Whitehouse and Wyden said in a statement. “The evidence assembled 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.”

Newsweek The Justice Department has requested comment through a press contact form on its website. An attorney representing Thomas was contacted via email.

Experts say while senators make a compelling case for appointing a special counsel to investigate Thomas, it is unlikely that Garland will do so.

The lawmakers “provide compelling evidence to open a criminal investigation into Judge Thomas,” Bruce Green, a professor at Fordham Law School and director of the school’s Louis Stein Center for Law and Ethics, told News week. “And of course, allegations of criminal and ethical misconduct by a judge should be taken seriously because they undermine the legitimacy of the Supreme Court.”

However, Green said it is unlikely that Garland would appoint a special investigator, as otherwise he would face accusations of abusing his power as prosecutor in the months leading up to the presidential election.

“That would undermine public respect for the legitimacy of the Justice Department,” he added. “It is unlikely that the Attorney General will risk the legitimacy of his own institution to protect the legitimacy of the Supreme Court. He will leave it to Chief Justice Roberts and the other justices to keep them in order.”

Charles Gardner Geyh, a professor at Indiana University’s Maurer School of Law and an expert on judicial ethics, agreed that political considerations would likely prevent Garland from appointing a special counsel.

“The situation is complicated by the fact that there are good reasons for an investigation that coincide with political ones,” he said News week.

Republicans, he said, “will portray this as a political witch hunt aimed at harassing a staunch conservative on the court.”

At a time when public confidence in the court is waning, the “possibility that a judge could use his position to accept generous gifts from a major Republican donor and then hide the existence of those gifts from the public by ignoring his reporting requirements is rightly troubling,” Geyh said. “The question of whether a special investigator will be appointed is difficult to answer because we are in uncharted territory here.”

Stephen Gillers, a professor at New York University Law School, said that while Garland is “ultimately responsible for any decision a special counsel makes to bring charges against Thomas, a special counsel investigation of Thomas protects the Justice Department to some extent.”

It would be “uncomfortable” for the attorney general to argue before Thomas “when he is under investigation by a special counsel,” Gillers said. News week.

“That reality supports the idea of ​​having a special counsel rather than a regular member of the department, even if it doesn’t completely eliminate the discomfort,” he said. “The short answer is that the attorney general can do what the senators have asked. Whether he will do that or not is another question.”