Senators Beg Merrick Garland To Do His Job And Investigate Clarence Thomas
He hasn't done anything so far, why would he start now?
Last week, as most of us prepared for the holiday weekend, Senators Sheldon Whitehouse and Ron Wyden fired off a joint letter to Attorney General Merrick Garland formally requesting a Special Counsel “to investigate possible violations of federal ethics and tax laws by Associate Justice of the Supreme Court Clarence Thomas.”
We all thought he was trying to give bumbling Judge Aileen Cannon a boost with an unsolicited amicus brief, but maybe Thomas had other reasons to use his Trump v. United States concurrence to uncork a novel theory why Special Counsel can never be constitutional.
Whitehouse even namechecked the website. Very considerate!
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The Whitehouse-Wyden letter doesn’t exactly break new ground. It seems almost quaint to remember when ProPublica first broke that Thomas had collected half a million in gifts that he concealed from government-mandated disclosure. Since then, we learned that his mom’s house is a gift from a wealthy GOP donor, his RV was bought by a health industry executive, and the total price tag on it all reaches upwards of $6 million. But, now armed with documents from Thomas’s prime benefactor — revealing even more trips, natch — the senators bring everything together in one damning lower-case-i indictment for the Department of Justice to act upon.
Garland will instead channel his inner Bartleby and prefer to do nothing.
While some legal analysts wanted Merrick Garland to put Trump on trial within weeks of his AG confirmation, I’ve always appreciated the top prosecutor’s commitment to building a case before rashly firing off charges. It’s what makes the screeches of “lawfare” from hacks like John Yoo so egregiously misplaced. If this DOJ wanted to abuse the legal process to go after political enemies that hadn’t committed crimes, it would have done so years earlier.
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When the classified documents case broke and there was finally a clear federal criminal case, Garland duly appointed Special Counsel.
That said, the decision to appoint Special Counsel shouldn’t have waited until Garland felt he had a smoking gun. That’s a terrible standard to employ for deciding “is this an issue where my prosecutorial judgment might be clouded.” The point of the Special Counsel is to make sure the AG isn’t over or under selling the need for criminal charges.
We learned that Clarence Thomas spent years hoovering up graft over a year ago. If Garland cared at all, he’d have appointed some vaguely moderate GOP lawyer as Special Counsel already. They’d have successfully secured the Harlan Crow documents — the ones Whitehouse and Wyden recently received after a protracted battle — months ago.
We do not make this request lightly. The evidence assembled thus far plainly suggests that Justice Thomas has committed numerous willful violations of federal ethics and false-statement laws and raises significant questions about whether he and his wealthy benefactors have complied with their federal tax obligations. Presented with opportunities to resolve questions
about his conduct, Justice Thomas has maintained a suspicious silence.
The problem is this isn’t a request that the legislative branch had to make. The DOJ should’ve appointed a Special Counsel to manage an investigation into the original ProPublica report. If he didn’t do it then, there’s no reason to believe he’ll do it now.
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Merrick Garland thinks he’s the fairest of them all by refusing to even appoint Special Counsel until he’s 110 percent sure there’s a case. And that’s why he’s spent his tenure dithering away the most consequential work that the Justice Department is charged with doing.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
