Did United States Supreme Court Justice Clarence Thomas Actually Violate the Ethics in Government Act?
The legal analysis provided by many news organizations may be misinterpreting the actual provisions of the Ethics in Government Act in order to claim Justice Thomas has violated federal law.
I preface this article with the following. I am not the president of my local Clarence Thomas fan club. There are very few opinions he has joined or authored where I have agreed with him.1 I contrast that to the late Justice Antonin Scalia, the arch-nemesis of liberals, who joined2 or authored3 numerous Supreme Court opinions where I agreed with him. I intensely dislike Justice Thomas’s judicial ideology, despise many of the majority opinions he has written, and think many of the Court opinions he has joined are wrongly decided.4 Or simply abominable disgraces.5
Although I appreciate that he hires law clerks who do not graduate from T-14 law schools, he doesn’t do it to take a stand against extreme elitism in the legal profession that has harmed the profession and the public. Instead, he does it just to strike at institutions he perceives as too liberal. I even dislike his writing style. Former California Supreme Court Justice and D.C. Circuit Court of Appeals Judge Janice Rogers Brown, arguably more conservative than Justice Thomas, is a brilliant legal writer (though I often disagree with what she has written).6
According to most mainstream news organizations, Justice Thomas has acted unlawfully in accepting gifts from billionaires and not properly reporting them. In the eyes of the average reader or viewer, Justice Thomas has committed crimes the average American would face jail time for doing. If I based my judgments on whether an individual broke the law simply on my personal politics and legal philosophy, I would probably join the bandwagon.
However, my personal feelings about Justice Thomas’s judicial record are not be relevant in evaluating whether he has broken current federal ethics law. Whether Justice Thomas should have accepted these gifts and exercised good judgment in not reporting them is a very different question from whether Justice Thomas violated the Ethics in Government Act (the “EIGA”).
VOX News has kept track of every single scandal involving Justice Thomas.7 Based upon what has been reported thus far and individually evaluating each allegation, Justice Thomas arguably did not violate the EIGA.
With respect to the allegations, (1) the EIGA textually exempts the gifts or income in question from being reported, or (2) the EIGA’s text is so vague that, under the applicable standard, it could not be proven that Justice Thomas violated the law.
Basics of the Ethics in Government Act
The lack of reporting on the actual provisions of the EIGA and the one-sided analysis provided by most news organizations may lead the public to conclude that:
Justice Thomas is guilty of criminal activity that should land him in jail and, if not, lead to his impeachment.
Justice Thomas has illegally accepted gifts and has benefited from illegal payments to his wife.
Justice Thomas has clearly violated federal law by not reporting the gifts from Harlan Crow and Leonard Leo.
Some basic information about the EIGA is required to understand the allegations. The EIGA applies to Justice Thomas.8 However, the EIGA is a reporting statute, requiring individuals in federal government to file annual reports disclosing economic interests.9 This differs fundamentally from a law that prohibits the acceptance of gifts above a certain amount or requires mandatory recusals in the cases of conflicts of interest.10 Independent of whether Justice Thomas should have reported the gifts in question, the EIGA does not prohibit their acceptance.
The EIGA has both civil and criminal enforcement depending upon the violation. The Attorney General may bring a civil action against a person who violates the EIGA and seek a fine of up to $50,000 if they can prove that the person “knowingly and willfully” violated the EIGA.11 The EIGA makes it an offense to either “knowingly and willfully”:
Falsify any information that they are required to report.12 A person who falsifies information that they are required to report can be fined and serve up to a year in prison.13
Fail to file their required report or omit any required information from their report.14 A person who fails to file their required report or omits any required information from their report is subject only to fines.15
In nearly all of the allegations, Justice Thomas is accused of violating the second (omitting required information) and not the first (falsifying information). Additionally, under other federal statutes that could be used to prosecute Justice Thomas for EIGA, those statutes require violations that are material, which makes them inapplicable in this case.16 Thus, based upon the allegations, Justice Thomas would face fines for violating the EIGA, not any kind of criminal charges. This also might make a difference when evaluating a possible impeachment proceeding against him.17
What does it mean to “knowingly and willfully” violate the law?
The answer is not clear. “The word "willfully" is sometimes said to be "a word of many meanings" whose construction is often dependent on the context in which it appears.”18 The United States Supreme Court has explained that “where willfulness is a statutory condition of civil liability, we have generally taken it to cover not only knowing violations of a standard, but reckless ones as well.”19
Generally, “unless the text of the statute dictates a different result, the term "knowingly" merely requires proof of knowledge of the facts that constitute the offense.”20 However, courts attempt to not interpret statutes in such a way to “criminalize a broad range of apparently innocent conduct.”21 The term "knowingly" is "normally associated with awareness, understanding, or consciousness."22
Typically, ignorance of the law is no excuse for violations of the law.23 However, when a statute prohibits the knowing violation of a regulation or statute, a person cannot be guilty of violating that statute unless they know what the statute is and know they have run afoul of it.24 Liability for violations of the EGIA is going to be narrowly limited to the specific text of the statute.25 Thus, even if there are technical violations of the EIGA, there must be proof that Justice Thomas intended to violate the law.
First Allegation
“ProPublica revealed that Thomas has taken at least six trips on Crow’s private jet, stayed at his private resort in the Adirondacks, and used his superyacht on other luxury vacations over the course of two decades. Thomas has not disclosed these trips, a violation of the Ethics in Government Act. Crow has said he has not sought to influence Thomas on any legal or political issue or discuss pending cases before the court. Thomas has said he did not disclose these trips because he was told he did not have to do so.”26
Under the EIGA, a filer must report gifts “received from any source other than a relative of the reporting individual during the preceding calendar year, except that any food, lodging, or entertainment received as personal hospitality of an individual need not be reported . . . .”27 The EIGA defines the term “gift” as “a payment, advance, forbearance, rendering, or deposit of money, or any thing of value, unless consideration of equal or greater value is received by the donor . . . .”28 The EIGA defines “personal hospitality of any individual” as “hospitality extended for a nonbusiness purpose by an individual, not a corporation or organization, at the personal residence of that individual or his family or on property or facilities owned by that individual or his family”.29
According to the ProPublica report, Harlan Crow’s resort is a private estate.30 He does not operate it as a hotel resort business even if it is quite luxurious and he maintains an Ina Garten level of comfort for his guests. Despite what is alleged, the EIGA does not distinguish the level of personal hospitality that one receives. It simply provides an exception under the law. Thus, Justice Thomas's resort trips to Harlan Crow's resort are likely not reportable under the current language of the law.31
In the same article, ProPublica reports that Harlan Crow owns a yacht where Justice Thomas has taken vacations. ProPublica also reports that Crow also owns a private jet, which Justice Thomas has used for transportation on at least six occasions.
However, it is not clear that failure to report the private jet flights is a knowing and willful violation of the EIGA. Crow owns the jet and the yacht. He pays money to maintain them and use them. However, if Crow does not pay any additional fees for Justice Thomas to fly on his private jet or use his private yacht, the text of the EIGA suggests it’s not a gift. It costs Crow nothing to have Justice Thomas on board either. It is not a reimbursement of travel expenses either. If anything, both the private jet and the private yacht are simply extensions of personal hospitality.
A useful comparison can be made here to the California law.
Under the Political Reform Act of 1974, a “gift” is “any payment that confers a personal benefit on the recipient, to the extent that consideration of equal or greater value is not received and includes a rebate or discount in the price of anything of value unless the rebate or discount is made in the regular course of business to members of the public without regard to official status.”32 A "payment" is "a payment, distribution, transfer, loan, advance, deposit, gift or other rendering of money, property, services or anything else of value, whether tangible or intangible."33 While informational material is not a gift, "No payment for travel . . . shall be deemed “informational material.”"34
Under California Law, the trips aboard the private jet and the private yacht would undeniably constitute reportable gifts to Justice Thomas. Gifts that in any California administrative or civil proceeding, Justice Thomas would have to prove were not reportable gifts.35 The trips conferred a personal benefit on him regardless of whether Crow had to spend additional funds to invite him on board. Even if Crow personally owns both, he rendered his property to Justice Thomas for free. Moreover, it provides a tangible (or intangible) thing of value to Justice Thomas.
California law, of course, does not apply to Justice Thomas. The EIGA does. The EIGA lacks this emphasized language in the definition of a gift. There is no clear provision that conferring any personal benefit will constitute a gift. Nor is there any clear provision that a payment can be the mere rendering of an intangible thing of value. It is entirely plausible that Justice Thomas did not report because he reasonably did not think he had to, not because he knowingly and willfully evaded a disclosure requirement of the EIGA.
Second Allegation
“A third ProPublica report found that Crow has paid thousands in tuition for Thomas’s grand-nephew to attend two private boarding schools. Canter notes that the payment effectively constitutes a gift to Thomas and should have been disclosed, making it another likely violation of the Ethics in Government Act.”36
The EIGA provides that “each report required by section 13103 of this title shall also contain information listed in paragraphs (1) through (5) of subsection (a) of this section respecting the spouse or dependent child of the reporting individual as follows . . . In the case of any gifts received by a spouse or dependent child which are not received totally independent of the relationship of the spouse or dependent child to the reporting individual, the identity of the source and a brief description of gifts of transportation, lodging, food, or entertainment and a brief description and the value of other gifts.”37 A “dependent child” is defined as “when used with respect to any reporting individual, any individual who is a son, daughter, stepson, or stepdaughter and who— . . . . is unmarried and under age 21 and is living in the household of such reporting individual”.38
According to Pro-Publica, Harlan Crow directly paid the entirety of tuition of Justice Thomas’s grand-nephew at Hidden Lake Academy, which is a private boarding school in Georgia.39 Crow also reportedly directly paid the tuition of Justice Thomas's grand-nephew at Randolph-Macon Academy, a private boarding school in northern Virginia.
Vox quotes an expert as saying this is an “effective” gift to Justice Thomas. Although I agree that the payments are effectively a gift to Justice Thomas, the law does not require the disclosure of “effective” gifts, it requires the disclosure of actual gifts. The gift was made to his grand-nephew. Although Justice Thomas may have had legal guardianship of his grand-nephew, the statute does not address those who a filer has legal guardianship of. Textually, the EIGA only applies to sons, daughters, stepsons, and stepdaughters of the filer and excludes grand-nephews.
Moreover, the EIGA does not define the phrase “dependent child which are not received totally independent of the relationship of the spouse or dependent child to the reporting individual”. Does this phrase mean that but for the relationship, the gift would not have occurred? Or does this phrase mean that the gift is given without regard to the relationship? If Harlan Crow has a habit of supporting the private education of promising young individuals, did he decide to pay the tuition of Justice Thomas’s grand-nephew on his own?
At this point, it is entirely possible that had Harlan Crow not paid for the tuition of Justice Thomas’s grand nephew, Justice Thomas’s grand nephew simply would not have attended either private school. If that were the case, Justice Thomas received no gift as he was not relieved of any expense. From the facts available thus far, we do not actually know. It might be considered a gift without regard to the relationship. The law is unclear. And given the lack of clarity, it is difficult to claim that Justice Thomas knowingly and willfully violated the EIGA by not reporting the tuition payments.
Third Allegation
“A Washington Post investigation determined that Thomas has claimed income from a real estate company that no longer exists. It’s possible these statements were due to a clerical error, though they add to concerns about Thomas’s disclosures.”40
Here, Justice Thomas reported income annually from “Ginger, Ltd., Partnership”, a family company owned by his wife’s relatives, even though it had shut down in 2006.41 However, the company that he has received income from is owned by the same individuals and officially known as "Ginger Holdings, LLC". Justice Thomas is not accused of falsifying any amounts of income he has received. He is not even really accused of intentionally attempting to hide the source of money paid to him. Instead, a great wrongdoing is implied by news media.
Again, the standard is whether Justice Thomas knowingly and willfully broke the law. A clerical error does not rise to the standard.42 There is no material reason for Justice Thomas to write the old name of the company as opposed to the new company’s name. Certainly, it is no an attempt to deceive or mislead the public. Thus, Justice Thomas likely did not violate the EIGA by reporting the old name of the company.
Fourth Allegation
“A second Washington Post report discovered that conservative activist Leonard Leo paid $25,000 to Ginni Thomas in January 2012 for purported polling services, and requested that her name not be mentioned in the transaction. The company the payment was routed through, a polling company owned by former Trump adviser Kellyanne Conway, paid Thomas’s firm at least $80,000 that year. That same year, an organization Leo was affiliated with, the Judicial Education Project, filed an amicus brief in a voting rights case that was before the Supreme Court. Although Thomas’s actions in this case aren’t necessarily an ethics violation, they raise questions about a conflict of interest.”43
Here, any campaign finance violations committed by Leonard Leo would be those he is responsible for, not Justice Thomas. As the Washington Post itself noted, “The documents do not indicate whether Thomas knew of Leo’s role in the arrangement with Conway’s company, or of the Judicial Education Project’s role. (Conway sold the company in 2017 to what is now known as CRC Advisors, another firm that Leo chairs.)”.44 Additionally, if Leonard Leo requested that an employee violate a campaign finance provision only to be told that it would be illegal to do so, and the expenditure was subsequently properly reported, no crime has been committed.
More importantly, the polling services appear to be a political campaign expenditure. The EIGA provides “Political campaign funds, including campaign receipts and expenditures, need not be included in any report filed pursuant to this subchapter.”45 Thus, any payments to Ginni Thomas made by a duly registered political organization required to report them would be not be required to be disclosed by Justice Thomas on his annual report.
Fifth Allegation
“A second ProPublica report found that Crow purchased Thomas’s mother’s home as well as two vacant lots, and that this transaction was not disclosed. That lack of disclosure is also a violation of the Ethics in Government Act. Crow has said he purchased the home to one day convert it into a museum honoring Thomas; currently, Thomas’s mother lives there rent-free. Thomas has since said he will amend his ethics disclosure to reflect this purchase.”46
The EIGA provides that “The source and type of income which consists of dividends, rents, interest, and capital gains, received during the preceding calendar year which exceeds $200 in amount or value” must be reported.47 “Income” is further defined as “all income from whatever source derived, including but not limited to . . . . gains derived from dealings in property . . . .”.48 Moreover, the EIGA requires “a brief description, the date, and category of value of any purchase, sale or exchange during the preceding calendar year which exceeds $1,000—in real property, other than property used solely as a personal residence of the reporting individual or the individual’s spouse”.49
Here, it seems like Justice Thomas violated the EIGA by failing to report the sale of the property. However, a closer review casts doubt upon this interpretation. I highlight the term “personal residence” because it is far more ambiguous than realized. California law once more serves as a good comparison example.
Every Californian required to file an annual Form 700 Statement of Economic Interests knows of their requirement to disclose, among other things, their ownership interests in all real property.50 However, when one is required to disclose their interests in real property, an “interest in real property” excludes “the principal residence of the filer or any other property which the filer utilizes exclusively as the personal residence of the filer.”51
The Fair Political Practices Commission has advised that a filer does not have to disclose real property they own that is (1) exclusively used by their parents and grandparents as a residence, (2) one they intend to use as their personal residence but have not yet moved into, (3) a vacation cabin, (4) a residence the filer owns but receives no income from and does not live in because it is used exclusively by the filer’s soon-to-be-ex-wife and the filer’s children, (5) a vacant lot that the filer intends to construct a home for exclusive personal use, or (6) a residential property they reside in with others.52
There is no definition for “personal residence” in the EIGA.
The Pro-Publica report indicates that Justice Thomas co-owned his mother’s home with two of his siblings before he sold it to Harlan Crow.53 His mother lived at the property rent free and apparently continues to do so with Crow as the owner. From the facts known, that Justice Thomas co-owned this property as a personal residence for his mother. Arguably, this constitutes a personal residence. And the proceeds from the sale of the personal residence are technically exempt from the disclosure requirements under the EIGA. If so, he did not violate the law by not reporting it.
Sixth Allegation
“Texts obtained by the Washington Post and CBS News revealed that Ginni Thomas repeatedly urged then-White House Chief of Staff Mark Meadows to pursue efforts to overturn the 2020 results in the weeks after the election. The Supreme Court wound up deciding whether Trump White House documents could be released to the House January 6th Committee, an example of Justice Thomas’s work directly relating to his wife’s political activism. Thomas’s decision not to recuse himself on the issue raised concerns about his ability to be impartial on subjects on which his wife had taken a strong position.”54
On this, I fully agree. Justice Thomas should have recused himself from any cases where his wife was active. Even if her involvement had no bearing on his decision, the appearance is terrible. However, there is no current recusal statute for the United States Supreme Court. I would strongly argue that one is needed. But until one is implemented, Justice Thomas cannot be guilty of violating that which is not the law.55
Conclusion
We cannot evaluate ethics violations and current ethics laws on the basis of whether we like an individual justice’s philosophy. Fairness requires that we evaluate statutes without regard to the alleged violator. The law applies equally to Justice Thomas as it applies to any other American.56
Dahlia Lithwick, who is an excellent reporter, wrote of Justice Thomas and his allies, “Whether or not he’s adhering to the law is, at most, an afterthought.”57 This may be true. But whether it is, it is not a philosophy I wish to adopt for myself. It's not one that the mainstream news media should adopt either. It does a tremendous disservice to the public, replacing journalism with advocacy.
Finally, even if Justice Thomas did not violate the EIGA, his judgment, or lack thereof, in accepting these lavish gifts and not reporting them is completely fair game. Legal analysts are right to question whether they would have behaved in the same manner as Justice Thomas did. The criticism is fair.
Should Justice Thomas have reported these gifts even if he did not legally have to? Yes. There are three reasons for this.
As a campaign finance attorney, I always advise clients to over-report on financial disclosure forms. When it is uncertain whether an asset must be reported, it is far better to report that which might not have to be reported than not report what turns out to be reportable.58
It is also better to avoid the potential costs of having defend oneself if an authority erroneously believes you failed to report a reportable interest even if it’s ultimately adjudicated as something that is not. Pursuing successful statutory and constitutional defenses should be a last resort.
Finally, over-reporting is better from a point of public perception. Should you fail to report something the public learns about, it can be politically harmful to have not reported. The public will assume you had something to hide. Because Justice Thomas received the gifts and omitted them from his reports, some question his reported change on the Chevron Doctrine.59 This change may well be a genuine evolution on his part. But how can the public be blamed for feeling otherwise?
Should Justice Thomas have perhaps not accepted these gifts? Or perhaps not accepted all of them?
Perhaps. Just because one can do something doesn’t mean that one should do something. A Supreme Court Justice with Justice Thomas’s political background should know well about the importance of the court’s public appearance. Accepting these lavish gifts are bound to look bad in the public eye, and reflect poorly on the Supreme Court. Even if they were from friends and no ulterior motives existence, perhaps he should have not accepted these gracious offers.
But these questions are moral, ethical, and even political questions. They are not legal ones. It would be well worth it of journalists to acknowledge the difference. It is far from certain that Justice Thomas violated the EIGA.
See, e.g., Cooper v. Harris, 581 U.S. 285 (2017)(striking down North Carolina’s redistricting maps as an unconstitutional racial gerrymander); Melendez-Diaz v. United States, 557 U.S. 305 (2009)(holding a prosecutor violates the Sixth Amendment rights of a criminal defendant when they submit chemical drug test report without the testimony of the person who performed the test); Crawford v. Washington, 541 U.S. 36 (2004)(holding that hearsay statements admitted against a criminal defendant cannot be admitted without the ability to cross-examine the witness under the Sixth Amendment); Kyllo v. United States, 533 U.S. 27 (2001)(holding that law enforcement use of a thermal imaging device aimed at a private home from a public street constitutes a search under the Fourth Amendment); United States v. Playboy Entertainment Group, 529 U.S. 803 (2000)(5-4 decision)(invalidating restrictions on the Playboy channel as a violation of the First Amendment).
See, e.g., Hollingsworth v. Perry, 570 U.S. 693 (2013)(5-4 decision)(invaliding California’s Proposition 8 (2008) on the grounds that the defendant-intervenors lacked proper standing to appeal the federal court decision striking down the same-sex marriage ban); United States v. Eichman, 496 U.S. 310 (1991)(5-4 decision)(holding that the federal government could not restrict a person’s First Amendment right to burn the American flag); Texas v. Johnson, 491 U.S. 397 (1989)(5-4 decision)(holding that the state could not restrict a person’s First Amendment right to burn the American flag).
See, e.g., Brown v. Entertainment Merchant’s Society, 564 U.S. 786 (2011)(holding the First Amendment protected the right of minors to play violent video games); Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. 247 (2011)(holding that Virginia cannot invoke sovereign immunity to prevent a state created agency from suing state officials for a court order requiring the officials to comply with the federal statute); Melendez-Diaz v. United States, 557 U.S. 305 (2009)(holding a prosecutor violates the Sixth Amendment rights of a criminal defendant when they submit chemical drug test report without the testimony of the person who performed the test); Crawford v. Washington, 541 U.S. 36 (2004)(holding that hearsay statements admitted against a criminal defendant cannot be admitted without the ability to cross-examine the witness under the Sixth Amendment); Kyllo v. United States, 533 U.S. 27 (2001)(holding that law enforcement use of a thermal imaging device aimed at a private home from a public street constitutes a search under the Fourth Amendment); Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998)(protecting the right of men to file sexual harassment claims under the Civil Rights Act of 1964); Arizona v. Hicks, 480 U.S. 321 (1987)(holding that a warrantless search by law enforcement of an apartment violated the Fourth Amendment).
See, e.g., Lawrence v. Texas, 539 U.S. 558, 605-606 (Thomas, J., dissenting)(opining that a state’s decision to imprison gay and lesbian people for having consensual sex may be an “uncommonly silly law” but is fully constitutional under the Fourteenth Amendment).
See, e.g., Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022); Trump v. Hawaii, 138 S.Ct. 2392 (2018); Bush v. Gore, 531 U.S. 98 (2000); Boy Scouts of America v. Dale, 530 U.S. 640 (2000); Alden v. Maine, 527 U.S. 706 (1999). This is by no means an exclusive list.
See, e.g., Loder v. City of Glendale, 14 Cal. 4th 846, 938 (Cal. 1997)(Brown, J., dissenting)(“But that is life. Sometimes beauty is fierce; love is tough; and freedom is painful.”).
https://www.vox.com/politics/2023/5/5/23712870/supreme-court-clarence-thomas-ginni-ethics-harlan-crow-ethics-violations
5 U.S.C. § 13103(d)(“Any individual who is an officer or employee described in subsection (f) during any calendar year and performs the duties of his position or office for a period in excess of sixty days in that calendar year shall file on or before May 15 of the succeeding year a report containing the information described in section 13104(a).”); 5a U.S.C. § 13103(f)(11)(“The officers and employees referred to in subsections (a), (d), and (e) are— . . . . a judicial officer as defined under section 13101 of this title”); 5 U.S.C. § 13101(10)(“The term “judicial officer” means . . . the Associate Justices of the Supreme Court . . . ”)(emphasis added).
5 U.S.C. § 13103(d)(“Any individual who is an officer or employee described in subsection (f) during any calendar year and performs the duties of his position or office for a period in excess of sixty days in that calendar year shall file on or before May 15 of the succeeding year a report containing the information described in section 13104(a).”)
See 5 U.S.C. § 13141(3)(4)(defining federal elected officials and federal employees who are subject to outside employment and earned income limitations, excluding judicial officers).
5 U.S.C. § 13106(a)(1)(“The Attorney General may bring a civil action in any appropriate United States district court against any individual who knowingly and willfully falsifies or who knowingly and willfully fails to file or report any information that such individual is required to report pursuant to section 102. The court in which such action is brought may assess against such individual a civil penalty in any amount, not to exceed $50,000.”).
5 U.S.C. § 13106(a)(2)(A)(i).
5 U.S.C. § 13106(a)(2)(B)(i).
5 U.S.C. § 13106(a)(2)(A)(ii).
5 U.S.C. § 13106(a)(2)(B)(ii).
See United States v. Hansen, 772 F.2d 940 (D.C. Cir. 1985).
See U.S. Const. Art. II, § 4 (“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”).
Bryan v. United States, 524 U.S. 184, 191 (1998).
Safeco Insurance Company of America v. Burr, 551 U.S. 47, 57 (2007).
Bryan v. United States, 524 U.S. 184, 191 (1998).
Liparota v. United States, 471 U.S. 419, 426 (1985).
Arthur Andersen LLP v. United States, 544 U.S. 696, 705 (2005).
Cheek v. United States, 498 U.S. 192, 199 (1991)(“The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system”).
St. Johnsbury Trucking Co., Inc. v. United States, 220 F. 2d 393, 398 (1st. Cir. 1955)(Magruder, C.J., concurring)(“But where a statute provides, as does 18 U.S.C. § 835, that whoever knowingly violates a regulation of the Interstate Commerce Commission shall be guilty of an offense, it would seem that a person could not knowingly violate a regulation unless he knows of the terms of the regulation and knows that what he is doing is contrary to the regulation. Here again the definition of the offense is within the control and discretion of the legislature.”).
See Lovitky v. Trump, 949 F. 3d 753, 760 (D.C. Cir. 2020)(rejecting the argument of a duty to report liabilities for third parties as the text of the statute does not clearly direct it).
https://www.vox.com/politics/2023/5/5/23712870/supreme-court-clarence-thomas-ginni-ethics-harlan-crow-ethics-violations (April 6, 2023).
5 U.S.C. § 13104(a)(2)(A)(emphasis added).
5 U.S.C. § 13101(5).
5 U.S.C. § 13101(14)(emphasis added).
https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow
There is some argument that because corporations and non-profit organizations are exempt, there may be a legal violation depending upon whether Crow owned the resort through a corporate entity.
Cal. Gov’t. Code § 82028(a)(emphasis added).
Cal. Gov’t. Code § 82044(emphasis added).
Cal. Gov’t. Code § 82028(b)(1).
Cal. Gov’t. Code § 82028(a)(“Any person, other than a defendant in a criminal action, who claims that a payment is not a gift by reason of receipt of consideration has the burden of proving that the consideration received is of equal or greater value.”).
https://www.vox.com/politics/2023/5/5/23712870/supreme-court-clarence-thomas-ginni-ethics-harlan-crow-ethics-violations (May 4, 2023).
5 U.S.C. § 13104(e)(1)(C)(emphasis added).
5 U.S.C. § 13101(2)(A).
https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-scotus
https://www.vox.com/politics/2023/5/5/23712870/supreme-court-clarence-thomas-ginni-ethics-harlan-crow-ethics-violations (April 16, 2023).
https://www.thedailybeast.com/clarence-thomass-disclosure-history-just-got-murkier-after-harlan-crow-scandal
See United States v. Talkington, 589 F.2d 415, 417 (9th Cir. 1978)(holding that a misrepresentation that was irrelevant to determining a violation was not material).
https://www.vox.com/politics/2023/5/5/23712870/supreme-court-clarence-thomas-ginni-ethics-harlan-crow-ethics-violations
https://www.washingtonpost.com/investigations/2023/05/04/leonard-leo-clarence-ginni-thomas-conway/
5 U.S.C. § 13104(g). See also 5 U.S.C. § 13101(15)(C)(A reimbursement for a travel expense does not have to be disclosed when it is “required to be reported under section 304 of the Federal Election Campaign Act of 1971”).
https://www.vox.com/politics/2023/5/5/23712870/supreme-court-clarence-thomas-ginni-ethics-harlan-crow-ethics-violations (April 13, 2023).
5 U.S.C. § 13104(a)(1).
5 U.S.C. § 13101(7)(emphasis added).
5 U.S.C. § 13104(a)(5)(A)(emphasis added).
Cal. Gov’t. Code § 87203 (“Every person who holds an office specified in Section 87200 shall, each year at a time specified by commission regulations, file a statement disclosing the person’s investments, interests in real property, and income during the period since the previous statement filed under this section or Section 87202. The statement shall include any investments and interest in real property held at any time during the period covered by the statement, whether or not they are still held at the time of filing.”).
Cal. Gov’t. Code § 87206(f).
Gonzalez Advice Letter, No. A-05-251(“You need not disclose your residence used as a personal residence for your parents and grandparents so long as the residence does not constitute any other type of reportable interest, such as a reportable investment, reportable income, or reportable interest in real property.”); Miller Advice Letter, No. A-99-240(“Since the facts state that there is no business activity from the house that the sheriff and Dr. Bohl purchased, Sheriff Penrod is not required to report his personal residence on his Statement of Economic Interests.”); Brokaw Advice Letter, No. A-91-115; Levinger Advice Letter, No. I-88-328;Morgan Advice Letter, No. A-85-048 (“I advised that you were not required to report an interest in a vacation cabin so long as it is exclusively used by you and your family and no income is derived from it. Section 87206 [citation omitted].”); Torres Advice Letter, No. A-79-186(“Since the home in question was purchased for the purpose of serving as the assemblyman's principal place of residence and since he will move into the home within 30 days, the home rightfully may be defined as the assembly member's principal place of residence within the meaning of section 87206.5.”).
https://www.propublica.org/article/clarence-thomas-harlan-crow-real-estate-scotus
https://www.vox.com/politics/2023/5/5/23712870/supreme-court-clarence-thomas-ginni-ethics-harlan-crow-ethics-violations (March 2022).
See, e.g., McDonnell v. United States, 579 U.S. 550 (2016)(reversing convictions on the grounds that the statute did not prohibit the behavior in question).
Bond v. Floyd, 385 U.S. 116, 132-133 (1966)(“The State declines to argue that Bond's statements would violate any law if made by a private citizen, but it does argue that even though such a citizen might be protected by his First Amendment rights, the State may nonetheless apply a stricter standard to its legislators. We do not agree.”).
https://slate.com/news-and-politics/2023/05/harlan-crow-school-payments-insult-injury.html
See Lovitky v. Trump, 949 F.3d 753, 760 (D.C. Cir. 2020)(“Given the threat of civil penalties and criminal prosecution, a cautious filer, or one with complicated financial holdings, may want to err on the side of over-disclosure.”).
https://www.levernews.com/clarence-thomas-reversed-position-after-gifts-and-family-payments/