The same week that former President Donald Trump appeared in a Manhattan court room for the first time, ProPublica reported that for years Supreme Court Justice Clarence Thomas has accepted luxury trips from Republican businessman Harlan Crow without disclosing them. At first glance, those two stories may seem to overlap little, beyond two leading figures on the right being caught up again in scandal. But both Trump and Thomas are under fire as much for their record keeping as their actions — a sad sign of how ill-equipped our political system is to punish corruption.
Remarkably, amid the stories of lavish resorts, private jets and all-male retreats, the two most telling details about Thomas’s story aren’t even in ProPublica’s reporting. The first is Thomas’s statement. While Crow affirmed his “generosity” to “Justice Thomas and Ginni” to ProPublica, Thomas himself declined comment. Only after a day-long firestorm did Thomas issue his own statement Friday, claiming that “colleagues and others in the judiciary…advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable.”
If the justice felt his actions were proper, then he would never have hid them — or obscured why he hid them.
If Thomas’s claim that borrowing a private jet counts as “hospitality” stretches credulity, the second detail blows it up. This isn’t the first exposé of Crow’s “generosity” to the Thomases. Nearly 20 years ago, the Los Angeles Times reported that Thomas had accepted gifts and trips from Crow, including a bust of Frederick Douglass valued at $19,000. As that newspaper’s David G. Savage wrote Thursday, Thomas responded to that story, not by swearing off gifts, but by not disclosing those gifts. If the justice felt his actions were proper, then he would never have hid them — or obscured why he hid them.
Which brings us to Donald Trump. The former president has turned shamelessness into brand — “I could stand in the middle of Fifth Avenue and shoot somebody, okay, and I wouldn’t lose any voters, okay?” But he allegedly hid a one-night stand with adult film actress Stormy Daniels and an alleged affair with Playboy playmate Karen McDougal.
The overly credulous argue that the alleged concealments were to preserve his marriage. But according to Manhattan District Attorney Alvin Bragg’s statement of facts, McDougal’s non-disclosure agreement ended after the election, and Trump asked his then-lawyer Michael Cohen “if they could delay the payment [to Daniels] until after the election…because at that point it would not matter if the story became public.” Then as president, Trump allegedly disguised his reimbursement of Cohen to further bury the deception.
Why go to all this effort? Because most voters consider having affairs and purchasing people’s silence to win election as actions not befitting a president. The latter of those two actions is crucial: Bragg’s case doesn’t exist because of “hush money” or because of any alleged affairs. It exists because he says Trump deceived voters to win an election.
Bragg’s statement of facts and Thomas’ failure to disclose Crow’s lavish spending on him suggest that Trump and Thomas knew their actions were unworthy of the offices one sought and the other held. But unfortunately, neither man’s actions will lead to any accountability by themselves. Instead of charging Trump with cheating to win an election, and Thomas with receiving hundreds of thousands of dollars in improper gifts, we’re left with allegations of falsifying business records and outrage over improper gift disclosures.
This problem of ethical violations being defined down into nonexistence runs wider than Thomas or Trump.
In Trump’s case, the focus on his recordkeeping is partly the result of deliberate interference at the federal level. As legal writer Marcy Wheeler notes, after Cohen agreed to a guilty plea, the Trump Justice Department “attempted to interfere in the Cohen investigation repeatedly.” Then-Attorney General Bill Barr, for example, wanted the charges against Cohen dismissed even though he’d already pleaded guilty. Over at the Federal Election Commission, Wheeler writes, the commission’s general counsel recommended acting on complaints regarding Trump’s payments to Cohen, but “Republican Commissioners Sean Cooksey and Trey Trainor refused to do so.” By the time Trump left office, the federal government had its hands full with the Jan. 6 investigation and other matters.
As for Thomas, no interference was required because his actions — though clearly unbecoming of a justice — did not necessarily violate any actual rule. Even after years of trying to create an ethics code, the Supreme Court still has none. New guidelines from the Administrative Office of the U.S. Courts will require Thomas to disclose some of those gifts going forward. But, still, no rule prevents him from accepting such gifts, nor does any mechanism exist to mandate his recusal from any case involving groups linked to Crow.
This problem of ethical violations being defined down into nonexistence runs wider than Thomas or Trump. The Supreme Court has been limiting the scope of anti-corruption laws for years. The most noteworthy ruling came in 2016, when the court reversed former Virginia Gov. Bob McDonnell’s 2014 conviction on public corruption charges for accepting $175,000 in loans and gifts from a businessman who wanted McDonnell to promote a nutritional supplement. The court declared that none of McDonnell’s actions, including holding events at the governor’s mansion, met the standard of an “official act.”
Thomas joined in that decision, of course, but so did every single one of his colleagues — including the liberal justices. That legal experts on both sides of the aisle agreed with the ruling, in defiance of common sense, only highlights the breadth of the problem. “It seems obvious to the justices,” wrote Slate’s Dahlia Lithwick during the case’s oral arguments, “that public corruption and ethics rules are adorable, antiquated, and unenforceable because everybody does it.” Indeed, subsequent Congresses, under both parties, have declined to replace the now-neutered “official act” standard with something more stringent. Other seemingly basic anti-corruption efforts, such as a ban on members of Congress trading stocks, have also languished.
Any accountability is better than no accountability. Demands for Thomas’s impeachment and resignation from Democrats such as Reps. Alexandria Ocasio-Cortez, D-N.Y., and Ted Lieu, D-Calif., are welcome. So are calls for investigations from senators such as Judiciary Committee Chairman Dick Durbin.
But even impeachment is only a start. It would be far better if, instead of relying on record-keeping violations, our political system developed stronger laws reflecting a common-sense standard of corruption. But too many people in power — Republicans mostly, but many Democrats as well — don’t want it that way. They shelter in the shades of grey.
Oh, and the prosecutor who convicted McDonnell only to see that conviction thrown out? That would be Jack Smith, now in charge of the federal investigations of Trump. We can only hope that past isn’t prologue.
