Justice Clarence Thomas controversy explained: what he's accused of doing, and why it raises ethical concerns

By Weston Blasi

Can Supreme Court Justice Clarence Thomas be impeached after not disclosing perks that he received from GOP donor Harlan Crow? Or would he resign? What to know.

A bombshell report last week alleged that Supreme Court Justice Clarence Thomas has been accepting lavish gifts from Republican megadonor Harlan Crow for decades without disclosing them, such as trips on Crow's superyacht and private plane.

Some Americans are wondering whether Thomas, 74, could lose his spot on the Supreme Court over not disclosing these gifts. Google searches along the lines of "Could Clarence Thomas be impeached?" have spiked in the days since the allegations were first reported.

Read more:Watchdog groups call for Justice Clarence Thomas to address reported failure to disclose gifts from real-estate tycoon

Here is what you need to know about the allegations against Thomas and what could come next.

What are the allegations?

Thomas has reportedly been accepting lavish gifts from Crow for decades without disclosing them, according to a report last Wednesday from ProPublica. This includes vacationing on Crow's 162-foot superyacht, using Crow's private plane and spending time at luxury retreats owned by the wealthy developer.

Thomas is the longest-serving Supreme Court justice, and one of the most conservative justices on the Supreme Court.

Has Thomas responded to these allegations?

Thomas released a statement last Friday afternoon saying that he was advised that he didn't need to disclose these gifts.

"Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable," Thomas said.

Thomas also said that Crow and his wife are "dearest friends" of his, and that he and his wife, Virginia "Ginni" Thomas, have joined them on many family trips for several years now.

Read more:Clarence Thomas says he was advised he didn't need to disclose GOP donor's gifts but will change his approach on disclosures

Crow also released a statement, saying, "The hospitality we have extended to the Thomas's [sic] over the years is no different from the hospitality we have extended to our many other dear friends."

Crow added that Thomas and his wife "never asked" for any of the gifts or trips. And he also called the pair "very dear friends."

Is it illegal for Thomas to receive gifts?

Generally speaking, Supreme Court justices are required to disclose any perks that they receive if they are valued at more than $415 and they aren't reimbursed, according to public filings for judicial officers and employees. Those perks may include travel, food or lodging.

But some exceptions can include situations when a person hosts a justice on their own property, in which case food and lodging would not have to be disclosed. But this exception does not apply to travel expenses such as costs for a private plane, however.

Additionally, it appears Thomas should have reported vacations at Crow's Camp Topridge resort in New York because the developer technically owns the resort through a company, as opposed to owning it personally, according to ProPublica.

Anti-corruption rules for government officials are rooted in the Ethics in Government Act, which was passed after the Watergate scandal. Thomas's lack of disclosure has raised concerns around ethical standards.

"We need to hear from Justice Thomas," Kedric Payne, senior director of ethics and general counsel at the government watchdog group Campaign Legal Center, told MarketWatch this week. "You can't just let reporting like this and pictures like this simmer in the public without an explanation to cool things down."

Payne also told MarketWatch that he sees the lack of disclosure as "extremely serious," and there's "no other example of a Supreme Court justice in recent history having this type of violation."

Can Clarence Thomas be impeached?

To be clear, it's far too premature to think that Clarence Thomas could lose his spot on the Supreme Court over these allegations. The only ways for that to happen would be if he resigned, or if he was impeached.

Like politicians, judges including Supreme Court justices can be impeached. And the power to impeach lies in the hands of Congress.

The process is similar to how it would work with a federal politician. Like Americans saw during the impeachment proceedings of former Presidents Bill Clinton and Donald Trump, the House of Representatives has the voting power to impeach, and then the Senate would hold a trial to determine if a removal is warranted.

Impeachment requires a simple majority vote (50% plus one) in the House, and then two-thirds of the Senate must also vote to remove.

The threshold for removal, according to Article II of the U.S. Constitution, is for "Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Has a SCOTUS justice ever been impeached?

Yes, but it has only happened one time.

Associate Supreme Court Justice Samuel Chase was impeached by the House in 1804 "on charges of arbitrary and oppressive conduct of trials," according to the Federal Judicial Center. He was accused of refusing to dismiss biased jurors, and for excluding or limiting defense witnesses in two politically sensitive cases. But he was later acquitted by the Senate.

But Associate Justice Abe Fortas, who served on the Supreme Court in the 1960s, resigned just four years after being appointed to the court to avoid being impeached. He was under investigation by the Department of Justice for taking a secret $20,000 a year retainer from the family foundation of Wall Street financier Louis Wolfson in exchange for unspecified advice.

Impeachment is fairly rare among federal judges, too. Since 1803, just 15 federal judges in the U.S. have been impeached, and only eight of those led to convictions in the Senate, according to records from the Federal Judicial Center

Would a Republican-led House actually impeach Clarence Thomas?

Thomas is viewed as one of the most conservative justices on the Supreme Court, and was nominated to the court by President George H. W. Bush in 1991. He is the longest-serving current justice.

Because the House is currently controlled by Republicans, it would seem unlikely that House Speaker Kevin McCarthy would initiate impeachment proceedings against any conservative-leaning justice.

How much money does a Supreme Court Justice make?

Thomas's annual salary, like that of the other Supreme Court associate justices, is $285,400 in 2023, according to the U.S. Courts website. John Roberts, as Chief Justice of the U.S. Supreme Court, makes the most and will be paid $298,500.

Supreme Court justices also receive nonmonetary perks, such as federal health benefits, and have the ability to supplement their income by giving lectures and speeches, according to a detailed report by Time magazine. Lately, justices and their families have also been provided with additional security.

-Weston Blasi

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04-10-23 1052ET

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