[Congressional Record Volume 170, Number 74 (Tuesday, April 30, 2024)]
[Senate]
[Pages S3073-S3074]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. WHITEHOUSE. Mr. President, I am here today for the 31st time in 
my series on the special interest scheme that captured the U.S. Supreme 
Court.
  There is an old adage that the best way to show that one stick is 
crooked is to set a straight stick down next to it. So, today, we are 
going to look at some sticks.
  Supreme Court Justices are caught over and over receiving enormous 
gifts, often from people very interested in Court proceedings, and 
refusing even to report the gifts as the law requires. The disciplinary 
process for these Justices is virtually nonexistent. Not even basic 
factfinding takes place. So let's compare the Court's dereliction about 
its own conduct with the straight stick of how other Federal officials 
are treated when they don't report gifts, but let's start with a recap 
of the history.
  After the first round of gifts of yacht and jet travel from 
billionaire Harlan Crow to Justice Clarence Thomas, the Judicial 
Conference, which is the administrative body which oversees the 
judicial branch of government, investigated the matter, and that 
investigation buried the situation rather than get to the bottom of it 
to the point even of applying the wrong legal process. The law requires 
the Conference, if there is a reasonable chance that the failures to 
disclose were willful, to refer the determination of willfulness to the 
Attorney General. There is good reason for that. One, the Attorney 
General has real investigative resources. Two, judicial clubbiness and 
mutual back-scratching is less likely. Three--three--the Attorney 
General can determine whether other crimes, like tax and false 
statement violations, are also implicated. But, back then, the Judicial 
Conference did not make the referral nor did they issue any public 
report providing any real explanation for that decision. On that 
transparency score, zero.
  Recently, the Judicial Conference, to its great credit, blew up what 
I call the Scalia trick, which is, one, arranging free secret vacations 
with resort owners and, two, pretending the generous, free hospitality 
he received was personal hospitality under the disclosure laws because 
he had been extended a personal invitation.
  Well, obviously, that is not what they mean in the disclosure laws by 
``personal hospitality.'' It is supposed to cover things where you know 
people or it is your in-laws or it is your college roommate--where 
there is a true, longstanding personal relationship, not somebody you 
don't know extending you a personal invitation. So stopping that 
nonsense was good, but here is the transparency part:
  The Conference described what they did in that decision as a 
clarification--a clarification--which was also good because it 
acknowledged that was the rule all along. They weren't making a new 
rule; they were clarifying what had been the rule all along. But then 
along comes Clarence Thomas, who is usually completely silent on his 
many ethics failings--completely silent. On this occasion, he instantly 
launched lawyers to say he would comply with what they called the new 
rule. The trick to that stunt was the claim that this was a new rule. 
Claiming it was a new rule meant that he would only have to comply 
going forward, not go back and clean up years of false financial 
filings.
  So I have asked the Judicial Conference to clarify what it meant by 
``clarification.'' So far, I have received no answer. So, as of now, 
years of Thomas and Alito misfilings remain uncorrected, but it is 
still going on. So, on that, the transparency score is pending.
  The Judicial Conference is also reviewing the more recent round of 
Harlan Crow-to-Clarence Thomas mega gifts, and it is to be hoped that 
the judges now on the Judicial Conference will do a better job of 
following the law than their predecessors did; that they will make a 
proper referral to the Attorney General and that they will let the 
facts be properly investigated. There is no sign of that yet, just that 
the investigation is ongoing. So the transparency score on that is also 
pending.
  The danger in all of these decisions about judicial disclosure 
failings is the judges may see the whole mess as just a problem in a 
judicial bubble, their own little concern that is really no one else's 
business. But it is far more serious than that, as I am about to show.

  However, if there is nothing to compare their own behavior to, 
nothing to compare their own stick to, they might not notice its crooks 
and its bends.
  Let me go back to one of the reasons for referral to the Attorney 
General: He is positioned to determine if criminal laws were also 
violated along with disclosure laws. There is every reason to believe 
that Justices who failed to report big emoluments on their judicial 
disclosures also failed to make required tax disclosures.

[[Page S3074]]

  I recently saw an article pointing out that even Academy Award gift 
bags create tax consequences. It was reported ``the Academy decided to 
end its practice of handing out gift bags, citing the upfront tax 
burden they placed on stars.'' Well, if gift bags for stars create tax 
consequences, so must big gifts to Justices. And if Hollywood stars are 
expected to understand that, well so should Supreme Court Justices.
  If Justices didn't make the required tax filings, they broke the law. 
And if they did make the required tax filings but still not the 
required judicial disclosure filings, that signals potential 
willfulness. It is the Attorney General's job to determine, but if it 
is determined that the misfiling was willful, that brings its own 
penalties and consequences.
  A large body of law about false statements also applies here, based 
on criminal laws, like 18 United States Code section 1001, a felony 
offense. Who knows, proper investigation may show that even fraud and 
bribery statutes apply, at least with respect to the billionaires who 
so generously lavish these Justices who keep handing them favorable 
decisions.
  Remember, for instance, the $25,000 payment via the Court-fixer 
Leonard Leo to Thomas's spouse, Ginni Thomas, specifying ``no mention 
of Ginni, of course.''
  This is serious. By shrouding in clubby secrecy judicial colleagues' 
violation of judicial disclosure laws, judges may also be covering up 
crimes--a problem reaching well beyond internal business of the 
judiciary. Plus, covering up crimes is just a bad look for judges.
  So to the straight stick, let's look at how other recipients of 
unreported gifts in other government offices have been treated when the 
unreported gifts come to light. If it is the judiciary's position that 
Justices are subject to a lower standard of accountability than 
ordinary executive and legislative branch officials, well, I would like 
to hear them say that outright. But if the standard for Justices is not 
lower, then these cases are very relevant comparisons.
  To keep it simple, today, let's just compare cases involving 
nondisclosure of free gifts of vacations, event tickets, lodging and 
travel, like those gifts which Thomas and/or Alito received from 
wealthy donors.
  In 2016, the government accepted a guilty plea from the Resident 
Agent in Charge of a Mexico DEA field office. The DEA agent had failed 
to disclose gifts of private air travel provided to him between his 
duty station in Mexico and his home in Texas--trips which he claimed 
were ``for personal'' purposes. He didn't pay fair market value for the 
flights; although, he did occasionally pay fuel costs.
  For his failure to disclose these gifts, the DEA agent pleaded guilty 
to a section 1001 false statements criminal violation, a felony, and 
was sentenced to 2 years of probation and 100 hours of community 
service.
  That same year, the government accepted a guilty plea from the 
director of a Veterans Affairs hospital for her failure to disclose 
gifts she received totaling a bit more than $21,000, including domestic 
and international airline tickets, concert tickets worth $730, a check 
for $5,000, resort spa services, a gift card, and the registration fee 
for a marathon. She, too, pleaded guilty to a section 1001 false 
statement violation, a felony, and was sentenced to 2 years of 
probation.
  The government prosecuted an official at the Department of Housing 
and Urban Development for failing to disclose gifts he received from 
the president of a company representing clients trying to secure HUD 
contracts. The gifts included luxury box tickets to a Washington 
Redskins football game. That official pleaded guilty to a section 1018 
false statements by a public official violation and was sentenced to 12 
months of probation, 60 hours of community service, and a $500 fine.
  The Jack Abramoff scandal produced a plea agreement with former 
Congressman Robert Ney for failing to properly disclose gifts he 
received from Abramoff and others. The gifts involved a trip to 
Scotland, worth more than $160,000, including all-expense-paid and 
reduced-price commercial and private jet travel; luxury accommodations 
in Scotland and London; and free golf, meals, drinks, and 
transportation. His other undisclosed or underreported gifts included 
an all-expense-paid 
3-night trip to New Orleans to gamble and vacation worth about 
$7,200; and a 2-night vacation at a resort in Lake George, NY, with 
lodging, boat rental, a chartered car, meals, drinks, and golf worth 
more than $3,500.

  Ney admitted to taking official actions to benefit Abramoff and 
others in connection with these gifts. He pleaded guilty to a section 
1001 false statement violation and to conspiracy to commit honest 
services fraud, make false statements, and violate a lobbying ban. Ney 
was sentenced to 30 months in prison, 2 years of supervised release, a 
$6,000 fine, and 1,200 hours of community service.
  In the Abramoff scandal, the government also prosecuted the chief of 
staff for the Department of Labor's Employment Standards Administration 
for failing to disclose gifts he received from Abramoff and others 
representing a client with business before the Labor Department.
  The unreported gifts included luxury box tickets to a Georgetown 
University basketball game, luxury suite tickets to a Harlem 
Globetrotters basketball game, tickets to a Baltimore Orioles baseball 
game, and tickets to a Washington Capitals hockey game.
  The official pleaded guilty to a section 1018 false statements by a 
public official violation and was sentenced to 36 months of probation 
and a $500 fine.
  The government also prosecuted a Department of the Interior employee 
who had failed to disclose gifts from Abramoff. The gifts included 
tickets to a Washington Redskins game and to a Simon and Garfunkel 
concert.
  According to a summary of the case by the Office of Government 
Affairs, the employee and Abramoff had developed a personal friendship. 
When Abramoff began giving this employee and his family sporting and 
concert tickets, the employee sometimes offered to pay for the items, 
but Abramoff said the tickets were for unused seats and that he wanted 
to give them to his friend--precisely like Alito's claims of empty 
private jet seats and personal friendship.
  The Department of the Interior employee pleaded guilty to a section 
1018 false statements by a public official violation and was sentenced 
to 2 years of probation and a $1,000 fine.
  So what conclusion can you draw from those cases? The conclusion you 
draw from those cases is that over and over, in the real world of 
proper government disclosure and accountability, government officials 
are prosecuted for failing to disclose gifts far lower in value than 
what Supreme Court Justices have received. In that real world, they 
plead guilty to felony criminal charges, and they receive criminal 
sentences. As felons, they lose various legal privilege. And this is 
just for failing to disclose. These cases did not involve tax crimes.
  The cases against these ordinary government officials, even a Member 
of Congress, provide a comparable--a comparable--against which 
undisclosed gifts to Justices of the Supreme Court should be measured. 
What we see shows that equivalent acts in the other branches are 
prosecuted as crimes, but at the Supreme Court, they are covered up 
behind a wall of judicial omerta.
  We can't even get the basic facts. That is no way to run a judicial 
branch. The judicial branch should be the straightest of sticks.
  To be continued.
  The PRESIDING OFFICER. The Senator from Rhode Island.

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