Sen. Ron Wyden, who chairs the Senate Finance Committee, is wielding his gavel like a powerful senator should. The Oregon Democrat penned a letter demanding that Texas billionaire Harlan Crow provide a detailed accounting of the gifts and travel Crow has provided to Supreme Court Justice Clarence Thomas, as well as details of the real estate purchases Crow made from Thomas. The letter could serve as an opening salvo into an investigation of the transactions via tax records, because federal taxes are something Wyden’s committee has jurisdiction over. The “unprecedented arrangement between a wealthy benefactor and a Supreme Court justice raises serious concerns related to federal tax and ethics laws,” Wyden wrote. “The secrecy surrounding your dealings with Justice Thomas is simply unacceptable.”
Wyden notes in the letter that Thomas didn’t disclose the gifts because he was advised they were “not reportable,” potentially violating federal disclosure laws. While there might be questions about whether all those trips and dinners and gifts fall under the “personal hospitality” exceptions in the rules, Wyden wrote, ”the Internal Revenue Code provides no such exceptions for transfers of a gratuitous or personal nature.”
“The cost of the use of your private jet and fully crewed superyacht by Justice Thomas would likely be well in excess of the annual gift tax exclusion (between $13,000 per recipient in 2011 and $17,000 per recipient in 2023, depending on the year), thus giving rise to a gift tax return filing requirement,” Wyden added. This isn’t an idle assertion: Wyden can find out if Crow didn’t report these gifts. There’s congressional authority to subpoena tax records to back him up. The Supreme Court said so, back when it ruled that the IRS had to comply with a congressional subpoena and provide tax records—even for presidents.
Oh, and about that real estate deal where Crow bought Thomas’ mother’s home and has allowed her to live in it rent-free for the past nine years? There are likely “gift tax filing obligations and gift tax liability” for that, too. “[T]he IRS has made clear that allowing for the use of property without receiving full consideration can be a taxable gift,” Wyden wrote.
Tax law is clear. The judicial ethics side is less so, and on that front there’s another Thomas/Crow issue in the news. After ProPublica’s initial reporting on the gifts, Thomas not only said he thought they didn’t have to be reported, he offered up what he probably thought was an exonerating statement: Crow hadn’t been involved in any cases before the court, anyway. That was a mistake, Bloomberg reports, because there was indeed a case.
In 2005, an architecture firm appealed to the Supreme Court seeking $25 million from Trammell Crow Residential Co. for allegedly misusing copyrighted building designs. That company was partly owned by Crow Holdings, and Harlan Crow was its chief executive officer and chair of its board at the time. Thomas did not recuse from the issue, and the court rejected the appeal. It’s possible that Thomas hadn’t read the briefs fully, since the case wasn’t going to be argued, and he had no idea that he had a potential conflict.
This isn’t quite the blockbuster the ProPublica reports are, but it does show sloppiness, to put it generously, on Thomas’ part. That assertion that Crow never brought a case to the court was wrong, and it begs the question: What else has Thomas not been truthful about?
That’s going to require digging by a different committee: the Judiciary Committee. So far, its chair isn’t showing the same zeal for transparency as Wyden. Sen. Dick Durbin, in fact, hasn’t even asked Thomas about any of this. Instead, he wrote a letter to Chief Justice John Roberts, passing the Thomas ethics buck to him. Durbin asked Roberts to come testify before the committee about Thomas’ problems.
Why not ask Thomas to come to the Senate? Good question. Good enough that even Chuck Todd thought to ask it on Sunday’s “Meet the Press.” “I think I know what would happen to that invitation,” Durbin said. “It would be ignored.” Once again: What in the hell is Dick Durbin doing?
Durbin’s response is hardly a vote of confidence in the power of his committee. It’s true that, with Sen. Dianne Feinstein’s absence from the committee, he doesn’t have the majority votes to issue a subpoena to make Thomas appear or provide documents. But he does have the power to put pressure on Thomas and then ask pointed questions about just what it is Thomas is trying to hide when he refuses to show up.
In a divided Congress with a slim majority in the Senate, there are real limits to what the Democrats can do about the Supreme Court. They can’t force reforms legislatively, not with the current Republican-controlled House. They can, however, use the power they do have to press the issue of Supreme Court wrongdoing. That’s what Wyden is doing: reminding the court that there is a watchdog on the scene. And you better believe that’s what Republicans would be doing if they had the gavels.
That’s unlikely to intimidate Thomas or to force him to start behaving as someone in his seat of immense power should. But being under the glaring light of public scrutiny might be tempering some of the other radical impulses of the conservatives on the court. Consider their most recent decision against banning abortion, refusing to block the sale of an abortion pill while the issue works its way through lower courts.
The Supreme Court of 2021 behaved very differently, allowing Texas’ six-week abortion ban to stand while litigation continued. The court then went on to rule that all states could ban abortion in the 2022 Dobbs v. Jackson Women's Health Organization case.The backlash from that decision, coupled with ongoing reports of the lack of ethics enforcement at the Supreme Court and the cratering public trust in the institution is making a difference.
The Senate needs to be keeping up the pressure, and Wyden is doing that. Durbin needs to take a page from him, issue that invitation to Thomas to testify, and then raise public hell when he doesn’t. It’s literally the least he can do.
Markos and Kerry are joined by Aaron Rupar today to discuss what he is seeing in the right-wing media landscape. Rupar is an independent journalist whose Public Notice Substack is a must-read for those who want to know how truly outrageous the conservative movement is. We are addicted to his Twitter account, with its never-ending stream of Republican lunacy all captured on video.