Many news outlets that have reported on U.S. Supreme Court Justice Clarence Thomas' failure to disclose his wife's income are portraying the allegations as, at most, a misdemeanor.
But as we have reported here at Legal Schnauzer, and now is being reported by protectourelections.org, Thomas' actions would amount to a felony if proven in a court of law. In fact, Protect Our Elections (POE) cites several cases where individuals have faced prosecution under the felony statute, the same one that Thomas apparently is trying to skirt by amending disclosure forms going back 20 years.
POE also is reporting that Virginia Thomas, the justice's wife, is part of an outfit called Liberty Consulting Inc., which appears to be a front organization for conservative interests who have issues before the Supreme Court.
News reports on the Thomas case generally have referenced 5 U.S. Code app. section 104, which calls for a misdemeanor punishment of up to $50,000 and one year imprisonment, or both, for each violation. Given that Thomas apparently violated the statute for roughly 20 years, he could wind up with a substantial penalty under that law.
But the punishment becomes much more severe under 18 U.S.C. 1001, which also appears to apply in the Thomas case. It is a felony statute carrying at least five years in prison, and a former official with the U.S. House of Representatives currently is under indictment for actions that almost mirror those in the Thomas case. Reports POE:
While 5 USC app section 104 makes this conduct a misdemeanor punishable for up to a year in prison, 18 USC section 1001 is a felony statute carrying at least five years in prison. In fact, Fraser Verrusio, former Policy Director for the U.S. House of Representatives Committee on Transportation and Infrastructure, is awaiting trial under section 1001 for not reporting income on his "United States House of Representatives Financial Disclosure Statement for Calendar Year 2003."
You can read more about the charges against Fraser Verrusio at the link below. It appears that he was given no opportunity to amend his filings:
Indictment in U.S. v. Fraser C. Verrusio
Verrusio once worked for U.S. Rep. Don Young (R-AK), and the case has received extensive coverage in the Alaska press. The prosecution reportedly grew out of the Jack Abramoff affair.
The U.S. Supreme Court, the very court upon which Thomas now sits, has a history of treating such violations as felonies. Reports POE:
Moreover, in UNITED STATES v. WOODWARD, 469 U.S. 105 (1985), in a case decided by the Supreme Court, the defendant, after checking the "no" box on a U.S. Customs form, was punished for both the false statement (18 USC section 1001) violation and the misdemeanor charge of failing to report the currency itself --- all as a result of checking the "no" box.
You can check out the Woodward case at the following link:
U.S. v. Woodward, 469 U.S. 105 (1985)
As we reported in a recent post, domestic icon Martha Stewart and sports stars Roger Clemens, Barry Bonds, and Marion Jones are among those who have run afoul of 18 U.S.C. 1001. Stewart and Jones already have served prison terms, while the Clemens and Bonds cases are pending.
FBI Special Agent Hal Neilson faced charges under 18 U.S.C. 1001, apparently because he reported abuse of individuals with Middle Eastern surnames by a Bush-appointed U.S. attorney after 9/11. Neilson was cleared of all charges in December 2010, and now has filed lawsuits against several individuals connected to what appears to be a blatantly political prosecution.
Is there irony in Clarence Thomas' attempt to skirt the law? Oh yes, on several levels. As we noted above, the U.S. Supreme Court already has found such behavior to be a felony, but when one of its own apparently violates the law, the court's machinery goes into protection mode. Reports POE:
Upon seeing the January 22, 2011 file stamp on Justice Thomas' amended forms, ProtectOurElections.org phoned officials at the Judicial Conference to determine if receiving such materials on Saturday is normal or if special accommodations were made for Justice Thomas. The receptionist who answered confirmed that the Financial Disclosure office, like most federal offices, is closed for public business on Saturday. No one else at the office would explain whether Justice Thomas received special treatment by being allowed to file his amendments when the office was closed. Reporter Brad Friedman from The Brad Blog also called the office and received the same information.
More irony comes when you consider that Thomas and Antonin Scalia have positioned themselves as perhaps the foremost "strict constructionists" on the current court, meaning they insist on a literal interpretation of the law. A literal interpretation of 18 U.S.C. 1001 would indicate that Clarence Thomas committed a felony. But when the law is turned on him, Clarence Thomas doesn't seem to want it interpreted too literally.
The most important issue in the Thomas case, however, might be this: Evidence suggests that he deliberately set out to pervert the justice system, to hide the fact that he had massive conflicts of interests in certain cases of profound importance to U.S. citizens. In fact, the case has an obstruction-of-justice smell to it. Reports POE:
Kevin Zeese, attorney and spokesperson for ProtectOurElections.org, believes that Justice Thomas may have intentionally withheld the information in order to keep litigants from moving to disqualify him in cases where his wife's employment could cause a conflict of interest or where she could benefit from a decision. "Justice Thomas cast a critical vote in the Citizens United case allowing conservative groups like the Heritage Foundation and Liberty Central to raise millions of dollars in secret funds to support and elect conservative politicians," he said. "Had Justice Thomas disclosed that his wife worked for the Heritage Foundation, litigants may have had good cause to disqualify him from hearing that case. In fact, we are left to wonder if Justice Thomas knew that his wife was planning on leaving the Heritage Foundation to launch Liberty Central once Citizens United was decided. Clearly, she has benefitted personally from that decision."
As for Liberty Consulting Inc., POE has released a new video that indicates Virginia Thomas might be using the company as a front group to hide efforts to improperly influence both elections and the nation's highest court. The Washington Post reported last November that Thomas was stepping down at Liberty Central, another conservative advocacy group. The POE examines the curious ties between Liberty Central and Liberty Consulting and shows that the latter appears to be a shadow organization of some kind: