How Troubling Are the Payments and Gifts to Ginni and Clarence Thomas?

It is shocking but not especially surprising news that Virginia (Ginni) Thomas, the wife of Supreme Court Justice Clarence Thomas, was secretly paid tens of thousands of dollars in 2012 by a political-advocacy group that not long after submitted a brief in a case that was before the Court. The hidden transfer of funds, which was disclosed last week in an investigative report by the Washington Post, did not, as the columnist Ruth Marcus subsequently put it, “have the aura of an ordinary business transaction.”

But we are learning that such payments actually have been “ordinary business” on the Court. In fact, as I reported last year, similar but even larger undisclosed payments were made to Ginni Thomas in 2017 and 2018. During those two years, a conservative nonprofit group, headed by Frank Gaffney, a defense hawk known for promulgating anti-Muslim conspiracy theories, paid a firm she runs, Liberty Consulting, upward of two hundred thousand dollars for unspecified work, at a time when Gaffney had business before the Court. Those payments are visible in tax documents that were filed by Gaffney’s group, the Center for Security Policy. But they are not evident in the financial disclosures for those years submitted by Justice Thomas. Nor was any note made of the financial relationship when Gaffney joined six other advocates in filing an amicus brief to the Court, in August, 2017, in support of Donald Trump’s travel ban, which restricted the entry of people from seven countries, most of them majority-Muslim. Gaffney’s brief argued that “the challenge of Islam must be confronted.”

Throughout the 2017 and 2018 Court terms, as the Justices considered various challenges to the travel restrictions, Justice Thomas consistently took a pro-Trump line. In June, 2018, he and four other Justices narrowly upheld the final version of the travel ban.

Almost as troubling as the details of these ethical lapses is the fact that neither of these payments to Ginni Thomas would be known today except for random happenstance brought to light by investigative reporters. Judges are required to publicly report outside income in their annual financial disclosures, including approximate amounts earned by their spouses. But there is no requirement that a spouse who owns a firm must reveal the identities of their clients, which could reveal potential conflicts of interest. As a result, there is no way for the public to know if a spouse’s business venture is serving as a backdoor for payments from an interested party to a Supreme Court Justice.

As numerous critics have now noted, only the Supreme Court exempts itself from the judicial code of ethics that binds federal judges. Chief Justice John Roberts has said that the Court takes its “guidance” from the judicial code set out by the U.S. Judicial Conference, the policymaking body of the federal court system. But, at the Supreme Court level, the financial-disclosure process, and decisions about whether to recuse from hearing a case, are left up to the Justices, under an honor system. They fill out annual reports, but there is no independent oversight or enforcement of them. Over the years, Justice Thomas has repeatedly failed to meet these minimal disclosure requirements, amending his statements only after watchdog groups and investigative reporters have exposed lapses. In his disclosures in 2017 and 2018, for instance, despite the six-figure payments from Gaffney’s group to his wife, he gave a curiously low value for her firm, claiming in both years that it was worth only between fifteen thousand and fifty thousand dollars.

When payments are made to a Justice’s spouse by a nonprofit group, as in the Gaffney group’s case, the original source of the funds is especially screened, because such groups aren’t required to disclose their funders. It remains unclear, for instance, where Gaffney’s nonprofit got the funds to hire Thomas’s firm. (Neither the Thomases nor Gaffney responded to interview requests from The New Yorker.) But according to the Center for Media and Democracy, which monitors nonprofit political spending, one of the largest donors to Gaffney’s organization in 2017 was a pro-Trump political group, Making America Great, which was chaired by the heiress Rebekah Mercer, who is one of Trump’s biggest backers. As a result of this financial daisy chain, it is likely that hundreds of thousands of dollars flowed undetected from Trump backers through Gaffney and on to the Thomases, as the Court was agreeing to hear legal challenges to one of Trump’s signature policies.

Given Justice Thomas’s conservative judicial record, it’s likely that he would have supported the Trump Administration’s travel restrictions, anyway. The same may be said of the case that the Post highlighted. In that instance—the landmark decision in Shelby County v. Holder, in 2012—Thomas joined a 5–4 conservative majority in rolling back voting-rights protections. The vote was consistent with Thomas’s past rulings, but a concurring decision he wrote was also in line with an amicus brief filed in the case by the Judicial Education Project, the group that had paid Ginni Thomas earlier that year. The funds, according to the Post, were funnelled through another company, the Polling Company, which at the time was run by the conservative pollster Kellyanne Conway.

Leonard Leo, a leader of the powerful conservative legal group the Federalist Society, and a longtime friend of the Thomases’, was at the time advising the Judicial Education Project. According to the Post, Leo explicitly directed Conway to “give” Ginni Thomas “another $25k,” and he emphasized that the paperwork should have “no mention of Ginni, of course.” Conway’s company sent Ginni Thomas the funds, and documents obtained by the Post described the purpose of the payment as “Supplement for Constitution Polling and Opinion Consulting.”

The Thomases declined requests for comment from the Post. But Leo, who is arguably the foremost legal activist on the right, overseeing a large and growing network of conservative nonprofits aimed at influencing the courts, defended the payments to Ginni Thomas, as well as the secrecy. In a statement to the Post, he said that her work for the nonprofit “did not involve anything connected with the Court’s business” and that it had been necessary to conceal the payments because they would have provoked negative publicity. “Knowing how disrespectful, malicious, and gossipy people can be,” he said, “I have always tried to respect the privacy of Justice Thomas and Ginni.”

Respect for judicial privacy is understandable, even commendable. But when it conflicts with the public’s interest in knowing whether dark money is tainting the justice system, the intent of the law is clear. The 1978 Ethics in Government Act—which was passed in the wake of the Watergate scandal—was designed to fight corruption. Gaming whether the fine print of the Act permitted Justice Thomas to conceal over the years hundreds of thousands of dollars’ worth of free vacations, travel on private jets and yachts, private-school tuition for family members, and free rent for his mother, all paid for by the Dallas real-estate billionaire Harlan Crow, as ProPublica disclosed, and to hide payments made to a spouse may be technically defensible, but it clearly defeats the law’s purpose. And whether it is technically defensible remains to be seen.

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