Commissioned painting underscores why Justice Clarence Thomas should resign

We have become inured to the revelations about Harlan Crow, the Republican benefactor of U.S. Supreme Court Justice Clarence Thomas. Pro Publica's latest report (May 4) reveals that Crow paid the private boarding school tuition for the grand-nephew of Thomas to the tune of $6,000 a month. This amount, along with so many other gifts and benefits to Thomas and his extended family, were not reported by the jurist on the post-Watergate annual federal financial disclosure forms required of a host of supervisory and/or Senate-confirmed federal employees.

I was one of those federal employees holding a supervisory position at the Department of Justice who every year had to complete the laborious but necessary federal disclosure forms, iterations of SF 714 and OGE 278e.

I would call the annual forms "baby taxes." It would take several weekends to comb the records of the family (my husband and my children) to religiously find and disclose every benefit, investment, and honoraria received in the annual reporting period. So, when I taught trial advocacy for just five days at Harvard in any given year and was provided with food, lodging, and travel, that had to be disclosed on the form. When my husband, a teacher and consultant, received an honorarium for some exceptional presentation, that too had to be disclosed on the form.

I knew of a federal judge who took this disclosure so seriously that the judge's legal assistant was tasked annually to spend weeks manually going through paper copies of all the judge's financial records to ensure that every item on the judicial disclosure booklet (the detailed instruction manual) was followed.

It was a chore; but those of us who were employed by the federal government and held positions of trust understood it was something each of us had to do. We "feds" who made decisions over the lives of others and were paid by the people of the United States well understood the necessity of disclosing sources that could - even arguably - appear to influence our decision making.

The Department of Justice, like the federal judiciary, has rules about what one can receive whether it is a gift or some other kind of benefit. This is why after a trial victory a flower-arrangement-of-gratitude delivery was left at the office reception desk; boxes of delectable Christmas chocolates sent by vendors or law firms were left there too. It was about the appearance of impropriety. We were not to be or appear to be in the pocket of a special interest.

CODE-OF-CONDUCT RULES ARE DIFFERENT FROM THE MANDATORY (POST- WATERGATE) FEDERAL EMPLOYEE FINANCIAL DISCLOSURE FORMS

But what appears to be lost in the public discourse is that there is a difference between the federal codes-of-conduct (no gifts from a single source in excess of $20 or $50 in a single year) and what we old-timers at DOJ called "the Watergate forms" - those pesky annual financial disclosure reports. The codes-of-conduct were about what one could accept; the latter were about what certain federal employee decision-makers (to include those in U.S. Senate-confirmed positions) had to disclose to the public.

The annual disclosure forms came into being in the aftermath of Watergate. The Act clearly says what it is about. It's called "the Ethics in Government Act of 1978" then-pursuant to 5 U.S.C. app. §§ 101-111.

2013 Same Sex Marriage Revisions To Federal Disclosure Rules

Justice Thomas, like me, was required to disclose what he, his spouse and dependents received from third parties. Why? Because the public is entitled to know. For him to say that "colleagues and others in the judiciary" said it was okay to not provide information to the public about these gifts - conflicts with the explicit words of the statute.

THE MANDATORY POST-WATERGATE FEDERAL EMPLOYEE FINANCIAL DISCLOSURE FORMS WERE UPDATED IN 2013 TO INCLUDE DISCLOSURE OF GIFTS AND BENEFITS TO SAME SEX MARRIED COUPLES

The justice (who espouses an originalist, literal view of the words of the constitution and statutes) knows better than to blame the "bad advice" of unnamed colleagues for his misbehavior. The words of the Watergate disclosure statute are clear and require disclosure of benefits to the federal employee, the federal employee's dependents as well as the employee's spouse. In fact, the ethics statute was amended after the 2013 gay marriage recognition case of U.S. v. Windsor to make clear that federal employees must also disclose benefits provided to same sex spouses too.

1978 Post-Watergate Ethics Disclosure Statute

Let's be clear, there was no need for Justice Thomas to rely on colleagues for direction. All three branches of government, the judiciary (Justice Thomas), the executive branch (from the President on down to me at the Department of Justice) and Congress - all have detailed instruction reference manuals that explain the nuts and bolts of the minutia of disclosure.

IT'S A LAME DEFENSE TO SAY MY BUDDIES SAID IT WAS OKAY TO DO AND NOT TO READ THE REFERENCE MANUALS REPLETE WITH THE DETAILS OF REQUIRED DISCLOSURE

In my over 30 years as a prosecutor (federal and state, in Los Angeles and Alaska) in those cases when a defendant took the stand, I cannot recall one where a jury bought the defense of "my friends said it was okay to do."

For Justice Thomas to not disclose the fancy private jet foreign and domestic travel, luxury stays at an exclusive (seemingly Republican only) private lakeside Adirondack Mountain New York resort; the payment of his mother's mortgage, his wife's "consulting" fees, the commissioned art (to include a painted portrait of the justice and his wife - not available for public view ) as well as the 7-foot bronze statue of the justice's favorite nun, now installed in a New Jersey Catholic Cemetery is all bad enough.

But the fact that the donor, Harlan Crow, is an incendiary Republican right-wing cultural warrior who funds groups that deride women's bodily autonomy, deny climate change, promote anti-voting access, and entertains and connects those who support a Christian nationalist theocracy, makes the disclosure to the public all the more necessary.

Harlan Crow was no childhood friend of Justice Thomas. Crow's "relationship" with the Justice began after Thomas ascended to the court.

Crow capitalizes on his "connection" to the jurist. In around 2018, Crow commissioned a painting of himself, Justice Thomas and a few of their lawyer friends (three other well-known Republican flame throwers). The painting of the five men sitting in a semi-circle of Adirondack chairs underneath the gaze of a partially clothed statue of an indigenous Native American currently hangs on the wall of Crow's private Adirondack resort for all his guests to see.

Sen. Sheldon Whitehouse (D-R.I.) displays Harlan Crow's commissioned painting of himself, alongside Justice Thomas and three other lawyers during a Senate Judiciary Committee hearing on Supreme Court ethics reform on Capitol Hill in Washington, May 2, 2023./ Courtesy of New York Times News Services

An illustration of the five men in Harlan Crow's painting: (from left to right) Peter Rutledge, Lawyer; Leonard Leo, Lawyer; Mark Paoletta, Lawyer; Justice Clarence Thomas; and Harlan Crow.

Because Clarence Thomas deliberately omitted his contacts with Crow on Thomas' mandatory, annual ethics disclosure forms, those of us not on Crow's largesse list had no knowledge of the connection between the two. How could we know about the near "perfect record of litigation" Crow's "connected groups" have had cases before the court?

However, those who saw the painting at Crow's New York private resort knew. That the painting exists, where it hangs, and what it represents (men in a cabal, two holding cigars and sharing an intimacy) proves the need for and importance of the mandatory annual financial disclosure forms. Although art is in the eye of the beholder, the painting seems to capture the telling of a joke by the man "holding court." We, the public, have and had a right to know.

Justice Thomas, your decades of omissions warrant, at a minimum, that you resign from the court. If you decline, Chief Justice Roberts, as this was also on your watch, I ask you to resign in his stead. And whether either occurs, Attorney General Garland, there are ample grounds (public corruption, mail and wire fraud, and concealment money laundering to name a few) to take this matter to a federal grand jury. I have a feeling that on these facts, the grand jury (unlike our highest court and Congress) would do the right thing.