[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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