Why Clarence Thomas Investigation Is Unlikely To Happen

Attorney General Merrick Garland is unlikely to appoint a special counsel to investigate Supreme Court Justice Clarence Thomas, legal experts told Newsweek.

Senators Sheldon Whitehouse and Ron Wyden announced on Tuesday that they are seeking a criminal investigation into allegations that Thomas failed to disclose gifts, luxury travel, a loan for a luxury motor coach and other benefits from wealthy friends. Then Rep. Alexandria Ocasio-Cortez introduced articles of impeachment against Thomas and Samuel Alito on Wednesday.

In their letter, Whitehouse, who is on the Senate Judiciary Committee, and Wyden, the chair of the Senate Finance Committee, pointed to news reports and their own Senate investigation, alleging the evidence suggests that Thomas has “secretly accepted gifts and income potentially worth millions of dollars” since joining the nation’s High Court.

Their letter said they want a special counsel to investigate a $267,000 loan that Thomas used to purchase a luxury motor coach in 1999. Thomas did not disclose the forgiven debt on ethics filings and has not provided satisfactory answers about how he handled the matter, they said. They also want the special counsel to investigate undisclosed gifts that Thomas received from Republican megadonor Harlan Crow and other wealthy benefactors.

“We do not make this request lightly,” Whitehouse and Wyden said in a statement. “The evidence assembled thus far plainly suggests that Justice Thomas has committed numerous willful violations of federal ethics and false-statement laws and raises significant questions about whether he and his wealthy benefactors have complied with their federal tax obligations.”

Newsweek has contacted the Department of Justice for comment via a press contact form on its website. A lawyer representing Thomas has been contacted via email.

Experts said that while the senators make a convincing case for the appointment of a special counsel to investigate Thomas, it is unlikely that Garland will do so.

The lawmakers “provide a strong case on the facts for opening a criminal investigation of Justice Thomas,” Bruce Green, a professor at Fordham Law School and the director of the school’s Louis Stein Center for Law and Ethics, told Newsweek. “And, of course, allegations of criminal and ethical misconduct by a Justice should be taken seriously, because they erode the legitimacy of the Supreme Court.”

But Garland is unlikely to appoint a special counsel, Green said, because if he did so, he would face accusations of weaponizing prosecutorial power in the months leading up to a presidential election.

“That would undermine public respect for the legitimacy of the Department of Justice,” he added. “The Attorney General is unlikely to risk the legitimacy of his own institution to protect the legitimacy of the Supreme Court. He will leave it to Chief Justice Roberts and the other justices to keep their house in order.”

Charles Gardner Geyh, a professor at Indiana University’s Maurer School of Law and an expert in judicial ethics, agreed that political considerations would likely sway Garland from appointing a special counsel.

“This situation is complicated by the fact that there are good reasons to pursue an investigation that coincide with political ones,” he told Newsweek.

Republicans, he said, “will frame this as a political witch hunt aimed at harassing a stalwart Court conservative.”

At a time when public confidence in the Court is in decline, the “possibility that a justice is exploiting his position to accept lavish gifts from a Republican megadonor and then concealing the existence of those gifts from public view by flouting reporting obligations is legitimately troubling,” Geyh said. “Whether special counsel will be appointed is a tough one to answer because we are in uncharted territory here.”

Stephen Gillers, a professor at New York University’s School of Law, said that while Garland “would be ultimately responsible for any decision of a special counsel to charge Thomas, pursuing an investigation of Thomas through a special counsel to some extent insulates the Department of Justice.”

It would be “awkward” for the Solicitor General to argue before Thomas “if he is under investigation by a special counsel,” Gillers told Newsweek.

“That reality supports using a special counsel rather than a regular member of the Department, although it does not dispel the awkwardness entirely,” he said. “The short answer is that the Attorney General can do what the senators have requested. Whether he will or not is another matter.”

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