Supreme Court ethics and explanations

NICK EICHER, HOST: Coming up next on The World and Everything in It: ethics at the Supreme Court.

By law, the justices are required to file annual financial disclosure forms. What’s supposed to be included and how the forms are to be filled in and filed. Well, of course the devil’s in the details, and words can be ambiguous.

Multiple media reports lately have been critical of one justice in particular: Clarence Thomas.

MARY REICHARD, HOST: Justice Thomas says he has followed advice from colleagues.

So to gain some understanding, I called up Richard Painter. He signed a letter of complaint to Chief Justice John Roberts about Justice Thomas. Painter was the chief White House ethics lawyer in the George W. Bush administration. He was also vice chair for Citizens for Responsibility and Ethics in Washington, known as CREW, founded to counter conservative watchdog groups.

Painter is now a law professor at the University of Minnesota.

I ask him in turn about each accusation against Justice Thomas. But first, I wanted to get the elephants in the room acknowledged. One, Thomas has long been a target of liberal groups.

PAINTER: I couldn't care less what his politics are. And if I saw George Soros trying this stunt, I'd be going after it too. And I've gone after George Soros for the various expenditures that I believe have a corrupting influence on congressional elections and presidential races. I haven't seen him getting near the Supreme Court. He better not be. We do not want our Supreme Court justices being influenced by gifts from anyone, in particular billionaires, regardless of whether they're left, right, or center.

EICHER: And a second elephant: other justices have also done ethically questionable things.

PAINTER: Yes. CREW sent this letter asking for investigations specifically of the disclosure lapses by Justice Clarence Thomas. But there's a broader problem with respect to all of the justices on the court and a need to have a clear process for enforcing the ethics rules, disclosure rules, and keep recusal rules that are set forth in the United States statutes.

Understand, there are no official rules governing recusal. The justices decide for themselves whether they should.

Painter points out the bigger dilemma:

PAINTER: I'm very concerned about the fact that there are rules, there clearly are rules that are set forth in the United States Code and federal statutes, but there's no mechanism for enforcing the rules. And I'm very concerned that the Supreme Court does not acknowledge that they have a problem in this area.

REICHARD: On to the specific accusations against Justice Thomas. First, is it wrong for a justice while a justice to acquire new, wealthy, influential friends? Specifically, Justice Thomas’s friendship with billionaire real estate developer Harlon Crow?

PAINTER: It is a violation not to report gifts from friends, whether they're rich or not. There are exceptions to the reporting requirement. It is hospitality in the home of a personal friend, that is accepted if the personal friend is present, and need not be reported an invitation to dinner by a personal friend, or entertainment need not be reported. But it is very clear that transportation travel on yachts and private jets does need to be reported.

The rules around travel hospitality must have been unclear, as the Judicial Conference clarified that aspect in March. More activities must now be disclosed, such as free lodging at commercial properties and resorts.

Another accusation is that Justice Thomas did not disclose that Harlon Crow paid for his great-nephew’s private school tuition, when Thomas was the child’s legal guardian. Was that wrong?

PAINTER: Yeah, this isn't a gift to the child. If someone pays my child's tuition, child under the age of 18, their tuition or private school, that is not a gift to my child, that's a gift to me. He had the legal guardianship, he chose the private school and it was his obligation had to pay the fees if the fees had not been paid.

EICHER: The law governing this defines dependent children as son, daughter, step-son or step-daughter. So by strict wording, a great-nephew doesn’t qualify. But Painter says the law’s intention is clear enough and he believes Justice Thomas should have reported the tuition payment.

Another accusation is that Justice Thomas didn’t disclose the sale of his mother’s home to Harlan Crow, although he says he will amend the form. The explanation came from Mark Paoletta on the podcast Verdict. Paoletta is also a friend of the Thomases who was a lawyer in George H.W. Bush administration.

REICHARD: He said Thomas owned a third of his mother’s estate, and didn’t report income when the home sold because he’d spent more than that amount on maintaining the home.

But another part of the disclosure form says to report any transaction over $1,000.

Another accusation: failure to report payments to his wife Ginny Thomas as a consultant. But she had no pending business before the court. Does that make any difference to Painter’s way of thinking?

PAINTER: The disclosure rules are completely independent of whether someone has business before the court. The disclosure rules are designed to reveal the financial relationships and gifts.

There is a fundamental problem, a loophole with the ethics and government act. The loophole is that we do not require disclosure of the underlying payments into the LLC. at the corporate level, whether it's a Trump LLC, or Ginni Thomas's consulting firm.

EICHER: Painter argues that what’s needed is enforcement of ethics rules already used in the lower courts and apply those to the Supreme Court. But the justices themselves point out that recusing for reasons of convenience or just to avoid controversy leaves an empty seat on the bench. So some play in the joints is necessary.

And finally, the problem of the media:

PAINTER: The media in this country is very segmented along political lines. So for example, when I expose the corruption of the Pen- Biden arrangement, And I exposed that. Fox News was very interested in interviewing me and I went on Fox News, but MSNBC had no interest in it. When I expose corruption on the part of the Trump administration, MSNBC, MSNBC, and CNN will call me on, but not Fox News. When I criticize Justice Thomas, I will get interviews with MSNBC, and CNN, not Fox News. So it all depends. Everyone wants to look out at the corruption on the other side. So if I criticize George Soros, and what he's doing to corrupt politics in the United States, MSNBC doesn't want to talk about it. Fox News is on the phone, probably waiting for my call. But we go on and on this way. And as an ethics lawyer, I want to get back to the main point, this shouldn't be about partisan politics, and whether you're liberal or conservative, we should have the same rules for everybody.

REICHARD: According to the conservative investigative think tank Capital Research Center, CREW gets funding (Influencewatch) from several left-leaning organizations, including George Soros’ Open Society Foundations. CREW itself doesn’t reveal its donors, although Painter told me he believes nonprofits ought to. But the law doesn’t require it, so CREW doesn’t.

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