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?