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It sounds like Justice Thomas has made clear and egregious mistakes in disclosure,

Over the past two decades, Supreme Court Justice Clarence Thomas has reported on mandatory financial disclosure forms that he received hundreds of thousands of dollars in income from a real estate firm. But that real estate closed its doors in 2006, according to a Washington Post investigation.

Who decides whether or not this amounts to bribery or has colored his decisions? Certainly, if so, this would be illegal, right? Why hasn't a tribunal or case been opened to investigate this regardless of if the result of if he can be removed from post, he is subject to the laws of any other appointed bureaucrats, right?

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    As far as I am aware, DOJ can initiate investigation without disclosing it to public. So it is possible they could be working on one, we just don't know yet. Apr 18, 2023 at 3:57
  • Note that the quoted case appears to be that the real-estate firm changed from a limited partnership ("Ltd.") to an LLC, and the "egregious mistake" is copy-and-pasting "Company Ltd." instead of "Company LLC". Apr 18, 2023 at 21:04

2 Answers 2

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Why hasn't a tribunal or case been opened to investigate this

How do you know that this isn't being investigated?

Investigations often aren't made public until they are concluded and charges are brought.

Who decides whether or not this amounts to bribery or has colored his decisions? Certainly, if so, this would be illegal, right?

Ultimately, a jury in a criminal case (together with appellate court judges reviewing the decision), would decide if this amounted to criminal bribery. In an impeachment case, it would be decided by members of Congress.

While actual bribery would be a crime, conduct that is merely unethical for judge that could have colored his decisions or created an appearance of impropriety without rising to the level of bribery is not a crime.

And, a U.S. Supreme Court justice is basically immune to any penalty or punishment (other than impeachment), based upon allegations of conduct by a justice that violates canons of judicial ethics but does not constitute a crime.

he is subject to the laws of any other appointed bureaucrats, right?

He is not.

The mandatory financial disclosures in the U.S. federal judicial branch for judges have direct teeth primarily by virtue of these violations constituting violations of judicial ethics rules for judges. It is not a crime for a judge not to make a mandatory financial disclosure.

But, U.S. Supreme Court judges are not, in general, sanctionable for violation of judicial ethics rules by any body with an ability to enforce its directions against them.

The Attorney General might be able to bring a criminal charges under a general federal bribery statute, but only if the elements of those crimes are met, and only after an investigation of the facts which in this case was only recently known due to investigatory journalism.

The primary federal bribery statute is 18 U.S.C. § 201. Section 201(b)(2) and (c)(1)(B) which applies to public officials who receive bribes has the following operative language:

Whoever - . . .

(2)being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

(A)being influenced in the performance of any official act;

(B)being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C)being induced to do or omit to do any act in violation of the official duty of such official or person; . . .

shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States. . . .

(c)Whoever—

(1)otherwise than as provided by law for the proper discharge of official duty—

(B)being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person; . . .

shall be fined under this title or imprisoned for not more than two years, or both.

Basically, a criminal prosecution for bribery requires proof of a quid pro quo.

The U.S. Supreme Court significantly narrowed the scope of federal criminal statutes for prosecuting official corruption short of actual quid pro quo bribery on the grounds that the public is denied the honest services of a public official in the case of McDonnell v. United States, No. 15-474, 379 U.S. ___ (June 27, 2016) (although the federalism oriented basis for the decision is arguably inapplicable in a case against a federal judge).

Also, if Justice Thomas had the support of a majority of the non-conflicted judges on the U.S. Supreme Court (which is plausible at present which Justice Thomas is part of a six judge conservative majority out of nine judges), the U.S. Supreme Court could find a reason to declare Justice Thomas immune from the charges or otherwise dismiss them.

Congress could, of course, impeach Justice Thomas for this conduct (impeachment grounds are nonjusticiable, i.e. not subject to court review), and has impeached lower court federal judges for corruption related charges before. But that too takes time and the recent accusations against Justice Thomas don't have sufficient bipartisan support to clear a Republican controlled U.S. House of Representatives and a razor thin majority of Democrats and Senators who caucus with them in the U.S. Senate.

The lack of bipartisan support is in part, as noted by JoeW in the comments, because if Justice Thomas were removed from office, the vacancy created would be filled by President Biden with a far less conservative justice than Justice Thomas.

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    The other justices supporting him as there is a Democrat in office that would pick the replacement is a good point. Even in congress the fact that the replacement would be picked by a Democrat would factor into the votes.
    – Joe W
    Apr 17, 2023 at 21:07
  • Surely not "requires proof of a quid pro quo". Requires proof of a promise of a quid pro quo, I would think. That is, there doesn't need to be evidence that consideration passed in both directions, only that the recipient of the bribe has promised to do something in return. Though, tbf, it's probably easier to get proof that consideration passed in both directions, than to prove someone made a promise...
    – Auspex
    Apr 18, 2023 at 12:37
  • @Auspex I suppose. A promise itself is consideration though.
    – ohwilleke
    Apr 18, 2023 at 21:07
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There's numerous problems for any such investigation. The largest of them would be

A lot of things were not previously subject to reporting requirements

This article is only from a few weeks ago (2023)

Supreme Court justices must follow strengthened financial disclosure requirements surrounding gifts and free hotel stays, which follows rising pressure from lawmakers about the high court’s ethics rules.

The new regulations quietly went into effect on March 14 and clarify that the justices — and all federal judges — must disclose gifts and free stays at commercial properties, or when gifts of hospitality are being reimbursed by a third party who is not the person providing it.

Thomas would argue (correctly) that a lot of the recent allegations against him are measuring things by a standard that only recently changed.

There's no allegations of partiality

Judges have to appear impartial. The problem for Thomas critics is that there's no cases where the improper disclosures or gifted trips intersected with any cases in front of the court. Abe Fortas (the closest case of SCOTUS scandal) was deeply entangled with a man who was in legal trouble

Fortas had accepted a US$20,000 (equivalent to $148,000 in 2021) retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966. In return for unspecified advice, it was to pay Fortas $20,000 a year for the rest of Fortas's life (and then pay his widow for the rest of her life).

And

Wolfson was under investigation for securities violations at the time, and it was alleged that he expected that his arrangement with Fortas would help him stave off criminal charges or help him secure a presidential pardon. He asked Fortas to help him secure a pardon from Johnson, which Fortas claimed that he did not do. Fortas recused himself from Wolfson's case when it came before the Court.

Nixon had the DOJ investigate Fortas, and Fortas resigned. The issues Thomas has do not appear anywhere near as dramatic. The man who has been paying for the vacations Thomas has taken has not had any business before the court, nor is he in any serious legal trouble.

Disclosure errors are not that uncommon

It's important to note that the unwritten standard in DC is to just re-file corrected disclosure forms

“It is very common for members of Congress to amend their FDs [financial disclosures], especially for inadvertent oversights such as these, and Congresswoman Sanchez will amend her FDs promptly,” Hudson said in a statement to POLITICO.

Prosecuting Thomas for what could be a mere disclosure error would let any future DOJ do the same, something which nobody on either side of the aisle seems eager to have. Moreover, any investigation would be viewed as highly partisan.

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    This article slate.com/news-and-politics/2023/04/… makes the point that at least the flights on private jets required disclosure even under the old rules. The talk about the changed rules of disclosure may be a distraction.
    – tobi_s
    Apr 18, 2023 at 22:42
  • @tobi_s "Makes the claim" would be more accurate.
    – user76284
    Apr 20, 2023 at 5:28
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    Well, it's not a judicial opinion so I don't think there is a difference, but I chose my words carefully. That said, any discussion about disclosure rules misses the actual point which is whether Clarence Thomas acted in ways unbecoming for a Supreme Court justice.
    – tobi_s
    Apr 20, 2023 at 6:03

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