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Andrew Reinbach

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The Case Against Clarence Thomas

Posted: 10/19/11 10:29 AM ET

When is official Washington going to do more than talk about Clarence Thomas?

After all the issues raised this year about the Associate Justice--including apparent perjury on his financial disclosure forms, his intriguing connections to the Koch Brothers and to Harlan Crow, and apparent bribery--you'd think the Justice himself would be calling for an official investigation just to clear his name.

But no. Aside some elliptical references to the waters rising around him, Mr. Justice Thomas seems to think silence is his best bet.

We'll see if that's true, because the whole thing is sounding a lot like Bogart's line in The Maltese Falcon after he lists all the reasons he's turning in Brigit O'Shaugnessy: "Maybe some of them aren't important--I won't argue that. But look at the number of them."

On Thursday, for instance, ProtectOurElections.org (POE), a progressive group that's been busily building the case against Mr. Justice Thomas, is releasing a white paper it gave to the FBI in July about why it should investigate Mr. Justice Thomas.

It's a damning case. Aside from his oft-cited alleged perjury on his financial disclosure forms for claiming his wife Ginny made no income for 20 years--she made over $1.6 million--the paper includes specifics about gifts made to him by Dallas real estate developer Harlan Crow, previously raised in a blockbuster New York Times piece--gifts that should have been listed on his financial disclosure forms. For comparison's sake, the paper publishes the financial disclosure forms of Justices Kennedy, Roberts, Ginsberg and Breyer.

Also listed: Financial relationships between Mr. Justice Thomas and Harlan Crow that most people would suspect of being quid pro quo arrangements, if not outright bribes. The fact that the issue can even be raised about a Supreme Court Justice does nothing to enhance Mr. Justice Thomas' reputation. Among the issues raised by the Times: Crow's financing of a pet museum project of Justice Thomas'--the fish factory where his mother worked.

More suspicious are POE's details about donations made by Crow to Mrs. Thomas' organization, Liberty Central, that POE says were basically bribes, connected to the now-infamous Citizens United v. FEC case. That case opened the floodgates for political donations from corporations and other groups--money that's making the 2012 election the most expensive in history.

Without putting too fine a point on it, POE told the FBI that in its opinion, the evidence strongly suggested that a $500,000 donation made by Crow to Liberty Central went almost entirely to Mrs. Thomas, who drew $495,000 in salary over the 36 months following said donation; POE says the entire affair seems to be evidence of a payoff to Mr. Justice Thomas in return for his vote on Citizens--and the timeline seems to support this.

What did the FBI do with the white paper? The Bureau never confirms or denies anything unless it's making an announcement, so the answer is that it's not public knowledge. But the paper joins a growing list of demands for action in the case that may eventually force official Washington's hand.

On that list:

  • Rep. Louise Slaughter (D. NY) is making two different attacks on Mr. Justice Thomas--one, a call to investigate the apparent perjury he allegedly committed on his financial disclosure forms, is supported by 50 House Democrats.

  • Another would force him to recuse himself retroactively because of the sort of allegations made in POE's white paper. Retroactive recusal is an accepted legal remedy that would vacate many of the Court decisions Mr. Justice Thomas' voted on--including Citizens.

    • Common Cause has released a detailed listing of Mr. Justice Thomas' apparent perjury on his financial disclosure forms over1.6 Million in undisclosed spousal income.--part of a long list of studies and announcements made by the group on the subject.
    • Moves to impeach, notably a Facebook page, Impeach Clarence Thomas that's recently been inundating Washington with phone campaigns

    Attorney General Eric Holder has been asked by these and other groups to investigate these issues since February, but so far nothing he's done nothing publicly, despite the fact that the allegations, if found true, describe a direct challenge to the rule of law.

    The Thomas issue is probably one of the most poisonous in Washington these days, in large part because recusing himself would have a radical impact on the upcoming Court case over the Obama Health Care law, and also because, should he leave the bench, the balance of the court would be shifted from its rightward tilt. It's widely believed, for instance, that Anthony Weiner was stalked by a shadowy Oklahoma City group of cyber-vigilantes until they got something on him, because he was Mr. Justice Thomas' most vocal critic in Washington.

    The irony of all this is that today's cat fight has its roots in the infamous "Saturday Night Massacre" during the Nixon Administration. In that notorious event, Richard Nixon fired Attorney General Elliot Richardson, and then Deputy Attorney General Williams Ruckelshaus, because they wouldn't fire Archibald Cox, the special prosecutor who had subpoenaed Nixon as part of his investigation into the Watergate scandal. Nixon finally found someone who would, though: Solicitor General Robert Bork. When Ronald Reagan nominated Bork for the Court in 1987, that night came back to haunt him and derailed his hearings.

    As a result, Republicans were quick to defend Mr. Justice Thomas during his own confirmation hearings against charges he was unqualified to replace Thurgood Marshall, even after Anita Hill and others testified about personal behavior, including sexual harassment, that Democrats said disqualified Thomas for the bench. It was during Thomas' confirmation, in fact, that the phrase "Borked" first appeared.

    It would be surprising if the people opposing Mr. Justice Thomas today would disagree with the Democrats' opinion of him in 1987. The question is: Can Washington keep ignoring the clouds gathered around his head today, or will they decide enough is enough?

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