It’s Simple: The Senate Judiciary Committee Must Subpoena Clarence Thomas Now

Remember that great early scene from The Untouchables? Eliot Ness (Kevin Costner) and Officer Malone (Sean Connery) are sitting in a church. Ness says he wants to get Capone. Malone (Sean Connery) responds: “What are you prepared to do?” It’s a simple but emotionally powerful scene.

Malone goes on to recommend certain extralegal courses of action that I hasten to point out I do not endorse in the current instance, but: We now know, thanks to the heroic trio at ProPublica (Justin Elliott, Joshua Kaplan, and Alex Mierjeski) that Clarence Thomas violated the law. Their earlier reporting on Thomas from two weeks ago was stunning enough, about all the trips and gifts Thomas accepted from megadonor Harlan “Hey, they’re just World War II souvenirs!” Crow. But even that jaw-dropping report had to be qualified: Crow’s “apparent” gifts to Thomas, whose failure to disclose them “appears” to violate the law.

Now there is little such ambiguity. Crow bought a house Thomas owned in Savannah, Georgia, in 2014 for $133,000. A federal law passed after Watergate requires officials—including Supreme Court justices—to disclose the details of most real estate transactions worth more than $1,000. There is an exception in the law for primary residences, but that doesn’t apply here—Thomas didn’t live there, and neither did his wife. The law says Thomas was required to provide “a brief description, the date, and category of value of any purchase, sale or exchange during the preceding calendar year which exceeds $1,000.” He did not.

As responsible journalists and not lawyers, ProPublica’s reporters don’t say outright that it’s a violation of law. But they quote legal experts who do say so. “He needed to report his interest in the sale,” said Virginia Canter, a former government ethics lawyer now at the watchdog group CREW. Interestingly, Thomas filed a disclosure for 2014 that, ProPublica reports, got rather specific: “Thomas’ financial disclosure for that year is detailed, listing everything from a ‘stained glass medallion’ he received from Yale to a life insurance policy. But he failed to report his sale to Crow.”

Hmmm. Why would that be?

It’s hard to imagine a legitimate excuse. A major donor who’d been giving Clarence and Ginni Thomas lavish gifts for years finally went so far as to purchase a house he owned (Thomas shared ownership with his brother and mother). Thomas obviously made money from the sale. He didn’t disclose it. Obviously, the intent of the law is for the public to know about such matters. Thomas decided the public had a right to know about his stained-glass medallion but not this house.

This brings us to the Democrats.

Earlier this week, I wrote in response to ProPublica’s first report that the Democrats need to destroy Thomas’s reputation by holding hearings on his dealings, which of course is something they’ve never done. “Have a long hearing that lays bare every instance of his and his wife’s corrupt activities in a high-profile venue that Americans will watch,” I wrote. “Make the case to swing-voting Americans that he is dishonoring the court’s name and reputation; drive his approval ratings into the toilet (in a 2022 YouGov poll, Thomas already had the highest ‘very unfavorable’ rating of the nine justices, at 32 percent); and force the Republican senators to vote to keep this clearly undeserving, mediocre, arrogant, unscrupulous hornswoggler on the court.”

Now the case for action is even clearer. But action by whom? There’s only one serious contender: the Senate Judiciary Committee. It’s controlled by the Democrats, and they can do whatever they are prepared to do. But what exactly is that?

Last Monday, after the first ProPublica report, committee Chairman Dick Durbin vowed that the committee “will act.” He did not elaborate on that. Later, he urged Chief Justice John Roberts to investigate Thomas. Then I saw on cable news Thursday night (I can’t find anything online Friday morning) that he called on Merrick Garland to do something.

Mr. Chairman: Stop tossing the football around. You have a gavel, and you have subpoena power. Subpoena Clarence Thomas. Next week.

What? Horrors! Subpoena a Supreme Court justice? Can that even be done?

Yes. Congress can subpoena anybody it wants to. In fact, it has been done, at least once. In 1953, the House Un-American Activities Committee subpoenaed Associate Supreme Court Justice Tom Clark, who had been Harry Truman’s attorney general. It also subpoenaed James Byrnes, who had been Truman’s secretary of state—and Truman himself! This was all prompted by charges leveled by Herbert Brownell, Dwight Eisenhower’s attorney general, that Truman had knowingly as president appointed a Russian spy to an International Monetary Fund position (this was the economist Harry Dexter White; the general historical verdict is that White did pass some classified information to the Soviet Union but was not a Communist or Marxist dedicated to Soviet triumph in the Philby-Burgess sense).

None of them ever appeared before the committee, and sure, HUAC does not represent one of our country’s proudest moments by a long shot. I admit that gives me a moment’s pause. But we are not in the middle of a Red Scare here. There is no witch hunt taking place of prominent right-wingers (well, if you live on normal Earth, there’s not). No careers are being destroyed. All we have here is a man, one man, one very corrupt man, who is supposed to be one of this nation’s nine most preeminent lawgivers but who clearly thinks he is above the law.

And this returns us to Malone. Senator Durbin: What are you prepared to do?

The first thing to keep in mind is that Manhattan District Attorney Alvin Bragg didn’t “do” this. He didn’t indict Donald Trump. A grand jury did—a group of Trump’s peers (well, let’s assume they’re not sociopathic fascists, but I mean they’re citizens). These citizens heard testimony, examined evidence, and took a vote on whether the district attorney had presented sufficient evidence to suggest that a crime may have been committed. And the grand jury decided he had. The funniest tweet I saw Thursday night was from someone remarking on how Trump ought to be glad that he finally got the most votes for once.

Yes, obviously, Bragg pursued the case. Whether that turns out to be wise, we’ll see. What Trump is alleged to have done here is bad, but far from the worst thing he’s done. That would be, you know, trying to overthrow the government and get his vice president killed.

But this much is clearly true: Michael Cohen went to prison in part because of the payment to Stormy Daniels (he was convicted more on tax evasion, but campaign finance violations—the payment to Daniels—were one count in his indictment). If it was illegal for Cohen to make the payment, then surely it’s illegal to have ordered the payment, which is what Trump is alleged to have done. That’s all pretty simple.

So no, this is not “Communist-level shit,” as Don Jr. tweeted. And Joe Biden had nothing to do with this. Ditto George Soros. The Republican and right-wing reaction is just insane. Trump’s been in legal jeopardy his entire life. Read the Wikipedia entry “Legal Affairs of Donald Trump”: around 3,500 lawsuits, 1,450 as defendant; 169 suits in federal court; 100 tax disputes, with 36 liens against his properties for nonpayment of taxes; settlements in 100 cases; and of course the conviction of the Trump Organization last December on 17 criminal charges. He’s been a one-man crime wave his entire adult life. The wonder is that it’s taken this long for him to be indicted.

The indictment remains under seal, so we don’t yet know the charges. But it was interesting to see that the last witness the grand jury spoke to was David Pecker. Remember, the National Enquirer publisher admitted in 2018 that back in 2015, he and team Trump entered into their now-famous “catch and kill” agreement, by which the Enquirer would get the rights to stories that would be potentially embarrassing to Trump and bury them. They entered into this arrangement in August 2015, the month after Trump descended that escalator to warn us about those Mexican rapists. Pecker was involved not only in the Daniels situation but in that involving Karen McDougal, another woman who was trying to sell a story of an affair with Trump.

As batshit as the right is going, remember this: This may well prove to be Trump’s first indictment. There’s Fani Willis down in Atlanta, and the Justice Department and special counsel Jack Smith looking into January 6 and the classified documents at Mar-a-Lago. Those all seem more serious and in some ways clear-cut than the Daniels matter. Imagine what the right will do if Trump faces two more indictments.

This is going to get seriously ugly. I watched about 15 minutes of Tucker Carlson on Thursday night. Literally every sentence he spoke was an exaggeration or a lie or a willful misrepresentation of the truth (and remember, we know from the Dominion lawsuit that Carlson said he hated Trump “passionately”). He hit the “banana republic” theme and argued that this was a purely political move designed to stop Trump from getting back into the White House.

Well, no. It’s about the law. Again, we’ll be able to make a better assessment when we see the charges. But this isn’t about what Trump might do. It’s about what he (allegedly) did. And as for the precedent this sets, it’s entirely positive. Presidents should be prosecutable. They should be prosecutable even when they’re president. If someone is breaking the law, he’s breaking the law. The idea that a president has to worry about the law strikes me as a good thing, in this case and in all future cases where the people might have elected a corrupt person as president.

So this will prove to be good for the republic—if the republic survives this episode. Trump and the pro-Trump media have succeeded in creating a parallel-universe reality that at least a third of the country buys. That Joe Biden is behind this. That it’s a stop-Trump conspiracy. That George Soros is behind this. That Democrats have weaponized the justice system. And on and on. They’re enraged. And they’re armed. If you’re not really worried about that last bit, you’re not paying attention. I don’t want to give the bad guys any ideas, but it isn’t hard to conjure up some violent scenarios that Trump supporters might be willing to pursue. Tucker Carlson also “joked” Thursday night that now was a bad time to give up your AR-15. Trump himself has tweeted about “potential death and destruction” that could result from this.

So be scared. But be resolute. If Michael Cohen broke the law, which he did, then it stands to reason that Donald Trump did too, if the prosecutors can prove to a jury that he directed Cohen’s actions. This is about 2016, not 2024.