Jennifer Rubin was originally hired by The Washington Post to write the conservative point of view on its opinion pages. A journalist and a lawyer, Rubin found Trump to be intolerable, and she no longer writes from the right.

In this column, she commends the effort to investigate Justice Clarence Thomas and explains why:

Fed up with the justice’s stonewalling, egregious violation of judicial ethics, inaccurate legal filings and gross money grubbing from right-wing billionaires with business before the Supreme Court, Sens. Sheldon Whitehouse (D-R.I.) and Ron Wyden (D-Ore.) sent a letter to Attorney General Merrick Garland this week demanding a special counsel be appointed “to investigate possible violations of federal ethics and tax laws by Associate Justice of the Supreme Court Clarence Thomas.” Well, it’s about time someone took Thomas’s inexcusable conduct seriously. (Democratic Rep. Alexandria Ocasio-Cortez’s introduction of articles of impeachment in a Republican-controlled House, meanwhile, which followed on Wednesday, is a showy gesture but a nonstarter.)


The letter details “repeated and willful omissions of gifts and income from Justice Thomas’s financial disclosure reports required by the Ethics in Government Act.” And as the senators point out, investigations have been raised against other government officials for far less serious allegations.


This is not a complaint about failure to recuse, as reprehensible as it might be for Thomas to sit on cases concerning the insurrection in which his wife played a limited role, or about bribery; thanks to this court, such prosecutions are practically impossible. Instead, the letter concerns bread-and-butter allegations of false statements signed under oath and tax violations.


The list of issues is gobsmacking. For example: forgiveness of the principal on a $267,000 loan that was never reported as income. (“Documents obtained by the Senate Finance Committee indicate that no principal was ever repaid on the loan and that Justice Thomas only made interest payments on the loan prior to all payments ceasing on the loan. Forgiven or discharged debt is taxable income, and the Ethics in Government Act requires justices to disclose any ‘income from discharge of indebtedness.’”) This was never included on Thomas’s financial disclosure reports. Thomas has refused to say whether he accounted for the loan forgiveness on his income taxes.

Then there are the gifts — lots of gifts. The senators cite “undisclosed gifts from other wealthy donors … including private jet travel from Paul Anthony Novelly; private jet travel and country club membership from the late Wayne Huizenga; and private jet travel, luxury sports tickets, and lodging at a ranch from David Sokol.” The senator include an appendix detailing these lavish gratuities. The senators write, “Justice Thomas has claimed that some omissions were ‘inadvertent,’ and he has

amended some past reports accordingly. However, Justice Thomas has not disclosed all of the gifts that have been uncovered, and there may well be more.” Therefore, they charge: “His long history of omissions indicates a pattern of willfulness meriting investigation under the Ethics in Government Act.”


Then there are the gifts specifically from Leonard Leo — the right-wing legal impresario and former vice president of the Federalist Society who has helped pick Supreme Court justices and contrived to bring cases before the court to advance his dark money groups agenda, according to Whitehouse. The senators explain:
Last year, the Washington Post reported that Leo directed payments of at least $25,000 to a consulting firm run by Justice Thomas’s spouse, with Leo specifying that the documents related to the payments should make “[n]o mention” of Mrs. Thomas. The furtive nature of the payments raises further questions about how many such payments were orchestrated, whether legitimate services were actually rendered, and whether such payments required additional reporting by Justice Thomas. We have not yet adequately been able to investigate the extent to which any or all these undisclosed gifts were part of a coordinated gifts program to reward recipient justices.


In sum, the senators raise allegations of willfully false statements on government disclosure forms and income tax and gift tax violations. At this stage, these are allegations only. But surely there is a basis for further inquiry, the senators argue. After detailing other investigations into less egregious conduct, the senators argue that only a special counsel can properly investigate. (“Since no litigant appears before the Supreme Court more frequently than the United States government, represented by the Department of Justice, the Department may understandably hesitate to offend a member of that Court.”)

The senators are not the only ones to have advanced these arguments. In April 2023, the anti-corruption group Citizens for Responsibility and Ethics in Washington (CREW) sent a letter to Chief Justice John G. Roberts Jr. and Garland after Pro Publica broke news of lavish gifts Thomas received from another billionaire, Harlan Crow.


In that letter, CREW and several ethics experts wrote: “If true, Justice Thomas’ acceptance and failure to report these gifts and sales transactions on his annual mandatory financial disclosure statements not only undermines trust in his ability to impartially and fairly administer his duties as a member of the Court, but also threatens to corrode public confidence in the Supreme Court as an institution.” CREW’s president, Noah Bookbinder, tells me CREW never received a response.


One of the ethics experts who signed that letter, Richard Painter, tells me, “The attorney general may or may not decide to appoint a special counsel. I believe it is justified in this case.” If Garland does not appoint a special counsel or undertake any investigation, the Supreme Court justices, like the president in the new scheme of government concocted by this court, will conclude they operate in a world of criminal immunity, secure in the knowledge a partisan Senate will never remove them from the bench.
“Justice Thomas’s serious and frequent misconduct, including consistent failure to report lavish gifts from a wealthy benefactor with strong interests in the Supreme Court’s work and repeated failure to recuse from cases in which he had a clear conflict of interest, requires thorough investigation and genuine accountability,” Bookbinder tells me.

The Thomas scandal is what comes from refusing to adopt a mandatory ethics code for the Supreme Court and investing its justices with lifetime security. That leaves the rule of law dependent on the justices’ own good graces to remain ethical. That has obviously proven insufficient.


And so Whitehouse and Wyden, with no alternative, ask for the Justice Department to do its job. “The request is foundational to the rule of law,” constitutional scholar Dennis Aftergut tells me. “While many won’t expect Garland to pick it up before the election, if democracy survives November, the senators have written the bottom line for what must happen if we are to get corruption out of the court.”


Unfortunately, if felon and former president Donald Trump is elected, one can be sure no investigation will be undertaken. It therefore behooves Garland to move quickly, lest — again — justice delayed becomes justice denied.