I wrote the following short essay over the weekend, before CNN reported that Justice Thomas is planning to revise his 2014 financial report to include the previously omitted real estate sale to Harlan Crow. Having worked on judicial ethics for many decades, I was trying to figure out a way to excuse Thomas’s reporting failure, but it turns out there was no excuse. I am posting this now because it may still be of theoretical interest. I will have more to say later about Thomas’s repeated revisions — not a good look for a Supreme Court justice.
Is there an excuse for Clarence Thomas? If I try hard enough, can I figure out a way to justify the non-disclosure of at least some of his financial entanglements with billionaire Harlan Crow? Consider Pro Publica’s latest revelation, that in 2014 Crow purchased three Savannah, Georgia, properties – a house and two vacant lots – from Thomas and his family members, for $133,363, which the justice did not include on his annual financial report.
According to Pro Publica, this “transaction is the first known instance of money flowing from Crow to the Supreme Court justice.” Thomas’s critics have been quick to condemn him for a “shady” deal, running “afoul of the law,” and entering territory “treacherous for the justice and the court on which he serves.”
But could there be an innocent explanation?
Thomas evidently had a one-third interest in the real estate, along with his mother and the family of his late brother. The holdings were included on his report for 2014 as “rental property” with a value of under $15,000, and no mention of the sale. He listed the properties again for 2015, although he no longer owned them, with no valuation and no reported transaction or proceeds, with a footnote stating there was “no rental income for this property,” presumably because the house was still occupied by his mother. The properties were no longer listed on Thomas’s 2016 annual report.
It is at least possible that Thomas disclaimed his share of the proceeds, apportioning the money instead between his mother and the other family members. That would have been in character for Thomas, who is known to be generous and supportive of his family. Such a disclaimer would have to be in writing, of course, but it would not necessarily have been referenced in the tax document and deed located by Pro Publica. If Thomas did indeed disclaim his share, there would have been no income for him to include in the “Investments” section of his disclosures.
Unfortunately for Thomas, there is more to the annual report. In 2014, Thomas valued his third of the properties at less than $15,000, meaning that the aggregate value would have been under $45,000. Crow, however, paid the sellers $133,363 in the same year, or just under triple the maximum estimated value. Even if the justice graciously redirected his share of the proceeds to family members, Crow’s payment in great excess of the market value would still have been reportable as a gift to Thomas — a section that he left blank on his reports for 2014 and 2016 (for 2015, he listed only a $6484.12 bronze bust of Frederick Douglass, given to him by Harlan Crow).
That was the best I could do. After forty years of studying judicial ethics, I could imagine a way to absolve Thomas from one omission, although it ended up implicating him in another. Even so, it was better than the excuses Thomas has come up with for himself.
Posted by Steve Lubet on April 17, 2023 at 07:47 AM