The criminal-law scholar George Fletcher once quipped that the maxim "ignorance of the law is no excuse" is one of the few fundamental principles of law that most people actually know. As harsh as this principle may sometimes be when applied to ordinary citizens, applying it to justices of the Supreme Court seems only reasonable.
Thus it's difficult to feel sympathy for Clarence Thomas, as he finds himself embroiled in a controversy over his failure to reveal the sources of his wife's non-investment income (or indeed that she even had any such income). The 1978 Ethics in Government Act requires all federal judges to fill out annual financial-disclosure forms. The relevant question on the disclosure form isn't complicated: Even if Justice Thomas wasn't a lawyer, he shouldn't have needed to hire one to explain to him that the box marked NONE next to the phrase "Spouse's Non-Investment Income" should only be checked if his spouse had no non-investment income.
In fact Ginni Thomas was paid nearly $700,000 by the Heritage Foundation, a "conservative think tank," between 2003 and 2007, as well as an undisclosed amount by another lobbying group in 2009. Justice Thomas' false statements regarding his wife's income certainly constitute a misdemeanor, and quite probably a felony, under federal law. (They would be felonies if he were prosecuted under 18. U.S.C. 1001, which criminalizes knowingly making false statements of material fact to a federal agency. This is the law Martha Stewart was convicted of breaking by lying to investigators.)
Thomas' defense is that he didn't knowingly violate the law, because he " misunderstood" the filing requirements. This is preposterous on its face. Bill Clinton was impeached—and subsequently disbarred—for defending his false statements about his affair with Monica Lewinsky with an excuse that wasn't as incredible as the one Thomas is now employing.
Bill Clinton was impeached—and subsequently disbarred—for defending his false statements about his affair with Monica Lewinsky with an excuse that wasn't as incredible as the one Thomas is now employing.
Appropriately, a complaint has been filed with the Missouri Bar Association, of which Thomas is a member, demanding that Thomas be disbarred for lying to the federal government about his wife's financial dealings.
It's unlikely that Thomas will be disbarred, and even less likely that he'll be prosecuted, even though his conduct has been outrageous. That Thomas failed to disclose his wife's sources of income is not a trivial technicality: His wife's employment created excellent grounds for requiring him to excuse himself from hearing the Citizens United case, which overturned federal campaign-finance laws—much to the delight of Ginni Thomas' right-wing paymasters, who are now freer than ever before to purchase the best laws money can buy. (Federal judges are required to recuse themselves from hearing any case in which they or their spouses have any financial interest.)
Thomas' behavior raises three obvious questions, the answers to which are all inter-related: Why is it likely that no consequences will be visited on a Supreme Court justice who has committed a series of criminal offenses? Why is this story not a full-blown scandal? And why did Clarence Thomas do what he did?
Thomas is very unlikely to be prosecuted or otherwise sanctioned for the simple reason that, in the United States in 2011, we have a two-tiered system of laws. As Glenn Greenwald explains in his forthcoming book With Liberty and Justice for Some, despite living in a country with an unusually harsh criminal code that has created by far the biggest prison population in the world, our political and financial elites operate with something approaching complete impunity, safe in the knowledge that demands they be subjected to the same laws as everybody else will be ignored.
This in turn helps explain why a Supreme Court justice's egregious flouting of the law doesn't rise to the level of a significant public scandal: Because nothing is going to happen to Thomas, the fact that he has spent the last several years repeatedly flipping off the very same legal system that has made him one of the most powerful people in the country doesn't qualify as significant news. In America today, after all, the president orders American citizens to be assassinated with no trial, investment bankers steal billions, prisoners are tortured in flagrant violation of both U.S. and international law, and the legal system simply looks the other way. In such an atmosphere, it stands to reason that a Supreme Court justice committing a few minor crimes is a dog-bites-man story.
Finally, both of these factors throw light on the motives for Thomas' behavior. In one sense, Thomas' actions seem quite neurotic: He must have known that his failure to disclose his wife's sources of income would come to light (the disclosure forms are public documents), and anyway there's no legal mechanism to force a Supreme Court justice to recuse himself from a case, if he chooses to ignore his ethical obligations. But in another, Thomas' disgraceful conduct is perfectly understandable.
Clarence Thomas knows that, as a practical matter, he, like the rest of the power elite that rules America, is largely above the law. Yet he also knows that he will be subjected to harsh criticism for flaunting his legal immunity. These two facts allow him to enjoy the delicious pleasure of exercising tremendous social privilege, while simultaneously complaining that he's being persecuted by his political enemies. In other words, he gets to be an egregious scofflaw while at the same time claiming to be the victim of, to coin a phrase, a high-tech lynching.
It's nice work if you can get it.
Paul Campos is a professor of law at the University of Colorado at Boulder.