July 3, 2015
John Dean Knows How to Get Rid of Clarence Thomas
Posted on Jun 28, 2011
By John Dean
When 74 Democratic members of Congress requested that Justice Thomas disqualify himself from any ruling on the new health care reform law, which is making its way toward the Supreme Court thanks in part to the efforts of the tea party and Ginni Thomas to have that law ruled unconstitutional, he ignored the request. This is his standard operating procedure. Thomas simply is not troubled by those who are concerned that a justice and his wife directly and indirectly receive financial benefits from “a friend” with both financial and political interests before the court.
The question is what can be done about this problem. Early this year, U.S. Rep. Christopher Murphy, a Connecticut Democrat, introduced the proposed Supreme Court Transparency and Disclosure Act of 2011 (H.R. 862). When introducing this legislation, which would extend to Supreme Court justices the code of professional conduct that applies to all other federal judges, Murphy cited the conflict of interest and political actions of Justice Clarence Thomas. Recently, the bill received a glimmer of press attention as a result of Thomas’ latest reported shenanigans, and the website Daily Kos is collecting signatures for a petition supporting Murphy’s proposal. In fact, the proposal in the GOP-controlled House of Representatives is the proverbial snowball in hell. Nothing is going to come of it, even if Daily Kos collects 100 million signatures. Plus, the proposal is laden with serious constitutional questions and problems. At the top of that list is the likelihood that the Supreme Court would declare it unconstitutional if it were adopted.
There is a way, nonetheless. As a young official in Nixon’s Department of Justice—and, I must admit, with some amazement—I watched a Republican Justice Department and a conservative attorney general go after a liberal Supreme Court justice with remarkable success. Robert Shogan, a former Los Angeles Times and Newsweek reporter, recounted much of the story in “A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court.” I filled in a few missing pieces when I wrote “The Rehnquist Choice.” Rehnquist in those days was the head of the Office of Legal Counsel and prepared a detailed memorandum for Attorney General John Mitchell explaining how to undertake an action that had never before been done, namely for the Justice Department to start a criminal investigation of a sitting justice, not based on hard information but rather based mainly on speculation of a worst-case scenario, i.e., assuming gifts and favors were bribes.
With the Rehnquist memo in hand, Mitchell arranged a secret meeting with then Chief Justice Earl Warren, and told Warren that if Fortas did not resign from the court the Justice Department was going to launch an investigation of Fortas’ dealing with a financier, Louis Wolfson, then recently convicted of securities violations, because of Wolfson’s earlier gifts to his friend Fortas and Fortas’ wife. The case against Fortas was weak, yet Mitchell was more than bluffing. He was prepared to have a grand jury determine whether there was a fire amid the smell of smoke. When Fortas, a formidable legal mind, tested the bluff, Mitchell upped the stakes. He passed the word that he was going after Fortas’ wife, Carol Agger, a highly successful tax law specialist, as well as Fortas’ former law partner, Paul Porter. Mitchell said that he was considering reopening a grand jury proceeding that had cleared both Agger and Porter regarding a case disposed of years earlier. This, too, bordered on being a trumped-up charge, but an attorney general can make good on a bluff and actually convene a grand jury. That was not necessary. Rather than put his wife and former partner through the agony, or tarnish the court by the very fact of such a proceeding, Fortas resigned.
Square, Site wide
The parallels of the Thomas and Fortas behavior is striking. The recent New York Times article strongly suggests that Thomas has failed to file required annual financial statements. He has failed to do this in the past, claiming it an oversight. The line between gifts and bribes in these circumstances is as fine as a hair on a frog’s back. One suspects Thomas and his wife would not do well with close scrutiny. The Rehnquist memo, sitting in the files of the Office of Legal Counsel, provides the precedent to undertake such a federal investigation of both Clarence and Ginni Thomas. Does anyone who follows politics not believe that if the situations were reversed and Republicans found one of the Democrats on the Supreme Court engaging in similar behavior they would not employ the Fortas option? Of course they would.
There are two problems with this strategy. First, the Democrats would never do to Thomas what Republicans did to Fortas. For the Republicans, seats on the Supreme Court are worth whatever it takes to get them. They play hardball. For Democrats, well, they play beanbag over judicial appointments. Democrats are willing to toss a few stingers, but never do they truly want to hurt anyone. They cannot help it that they are nice people, and ruthlessness does not work for them. This is why a minority of Republicans in the United States can control the overwhelming majority of Democrats and independents who lean left.
Second problem, Thomas would fight to his last breath to keep his seat. He would claim the Fortas option was an attack on the court—for he already makes a similar claim when anyone is critical of his conduct. If Harlan Crow’s gifts and favors were given with a wink and nod, and in fact turned out to be bribes, and this could be proved to a jury beyond a reasonable doubt, and Thomas were convicted, I believe that rather than resign he would demand an impeachment proceeding to remove him from the court. Unlike in the case of Abe Fortas, who had deep concern for the court, it is not difficult to believe that Clarence Thomas cares only about Clarence Thomas. There is also the reality that as long as Republicans control the House of Representatives there will never be an impeachment of Thomas. Should Democrats regain control of the House, well, Democrats don’t play hardball.
In short, nothing is going to happen to Clarence Thomas. No one is going to truly challenge his conduct, and he will sit on the Supreme Court until he feels like leaving.
I’d be interested in your thoughts. Share them on Twitter: @johnwdean.
John Dean served as Richard M. Nixon’s White House lawyer for 1,000 days and is the author of several books, including “Worse Than Watergate: The Secret Presidency of George W. Bush” and “Conservatives Without Conscience.”
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