Did Clarence Thomas Commit a Federal Crime by Hiding Wife's Income?

Clarence and Virginia Thomas

U.S. Supreme Court Justice Clarence Thomas did not report almost $700,000 of his wife's income on financial disclosure forms, according to a report from Common Cause and The Los Angeles Times.


Virginia Thomas earned $686,589 over a five-year period (2003-07) from the Heritage Foundation, a conservative think tank, according to a review of IRS records by the watchdog group Common Cause. Federal judges are required by law to disclose "spousal non-investment income," but Clarence Thomas checked "none" for the years in question.

Does this mean a justice on the nation's highest court has committed a crime? The answer probably is yes. Will the legal system kick into high gear in an effort to protect one of its most exalted members? The answer to that definitely is yes--in fact, it already seems to be happening.

Steven Lubet, an expert on judicial ethics at Northwestern University School of Law, said Thomas committed a minor oversight that is unlikely to result in any penalty. Reports the LA Times:

Although unfamiliar with the complaint about Thomas' forms, Lubet said failure to disclose spousal income "is not a crime of any sort, but there is a potential civil penalty" for failing to follow the rules. He added: "I am not aware of a single case of a judge being penalized simply for this."

Lubet might want to try telling that to Rachelle Thomas-Zuill, a former FBI employee in San Francisco, who pleaded guilty earlier this month to making false statements to a government agency, which is a felony.

Lubet also might want to familiarize himself with 18 U.S. Code 1001, the statute under which Thomas-Zuill was prosecuted. The law makes it a crime to knowingly and willfully make "any materially false, fictitious, or fraudulent statement or representation" in any matter "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States."

How did Thomas-Zuill step in serious doo-doo? She stated on a financial disclosure form that she owned three properties with an outstanding mortgage debt of $866,000, when in fact she owned six properties and had a debt of more than $2.2 million.

That sounds an awful lot like what Clarence Thomas did in failing to disclose his wife's income.

At least one legal expert seems to consider the Thomas revelation a serious matter. Reports the LA Times:

Federal judges are bound by law to disclose the source of spousal income, according to Stephen Gillers, a professor at NYU School of Law. Thomas' omission — which could be interpreted as a violation of that law — could lead to some form of penalty, Gillers said.

"It wasn't a miscalculation; he simply omitted his wife's source of income for six years, which is a rather dramatic omission," Gillers said. "It could not have been an oversight."

Common Cause presents a chart that outlines incomes for Virginia Thomas that her husband did not disclose over a five-year period. The organization cites Title 5-Appendix of the Ethics in Government Act of 1978 and notes that Thomas appears to have violated the "financial disclosure requirements of federal personnel." What are the possible penalties? The law notes one avenue:

§ 104. Failure to file or filing false reports
(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.

The law references possible criminal penalties under Title 18 of the U.S. Code, which can include up to one year of imprisonment. Thomas, however, might be subject to prosecution under 18 U.S. Code 1001, which calls for a fine, imprisonment of up to five years, or both, for making false statements or entries.

Financial-disclosure forms for federal judges are available at judicialwatch.org. Clarence Thomas' forms for 2003-2009 can be viewed at the link below. He clearly has made it a habit to mark "none" under "Spouse's Non-Investment Income."

Clarence Thomas' financial disclosure forms

Thomas also apparently has made it a habit to ignore the warning at the bottom of the disclosure form, which reads:

Note: Any individual who knowingly and willfully falsifies or fails to file this report may be subject to civil and criminal sanctions. (5 U.S.C. app., sec. 104).

As the Rachelle Thomas-Zuill case shows, making false statements on a federal financial-disclosure form can be a serious criminal matter. Will it be treated seriously when the apparent violator is a U.S. Supreme Court justice?

Thanks to Clarence and Virginia Thomas, and the investigative skills of the folks at Common Cause, we might be about to find out.

Update at 11:36 a.m. CST, Jan. 24, 2011

The watchdog group protectourelections.org is asking the U.S. Department of Justice to bring criminal charges against Supreme Court Justice Clarence Thomas for failing to disclose almost $700,000 of his wife's income over a five-year period.

From a press release issued today:

Washington, DC--Today, www.ProtectOurElections.org asked the Justice Department to bring criminal charges against Supreme Court Justice Clarence Thomas for making false statements on his AO 10 Financial Disclosure forms every year since 2003 by falsely swearing under criminal penalty that his wife Virginia had no non-investment income.

Justice Thomas signed these forms under oath after certifying that the information in them was true and accurate. The forms include a specific warning that false statements will subject the signer to “civil and criminal sanctions.”

A letter from Protect Our Elections to U.S. Attorney General Eric Holder can be viewed at the link below:

Letter to Eric Holder re: Clarence Thomas

An attorney and spokesman for Protect Our Elections puts Thomas' actions in perspective:

“We are asking that the Department of Justice bring criminal charges against Justice Thomas for his knowing and willful false statements under oath, not just once, but at least seven times,” said attorney and campaign spokesman Kevin Zeese. “Supreme Court Justices are supposed to be role models for legal conduct, behavior and ethics yet Justice Thomas appears to believe that he is above the law. But just as Bill Clinton was charged for making a false statement while serving as President, no one is above the law, especially not one who knows the law and sits in judgment of others who have committed similar violations. If Justice Thomas is allowed to merely amend his forms and pay a civil fine, it will make a mockery of financial disclosure law, undermine respect for the law, and create the appearance that those in powerful positions can violate the law with impunity.”