What Do Clarence Thomas and Martha Stewart Have in Common?

Martha Stewart

Should U.S. Supreme Court Justice Clarence Thomas be allowed to amend his financial-disclosure forms and get away with an apparent violation of 18 U.S.C. 1001?

Domestic diva Martha Stewart undoubtedly would answer with a resounding, "Hell, no!" So, too, would sports stars Roger Clemens, Barry Bonds (baseball), and Marion Jones (track and field). Stewart and the sports stars all ran afoul of 18 U.S.C. 1001, commonly known as "making false statements," and they either have paid a price, or almost certainly will.

So why does it look like Clarence Thomas is likely to get off with amending false statements? We will examine that question, but it should be noted that at least one major editorial voice is saying Thomas should not get off lightly. A watchdog group is calling for Thomas to step down, followed by a criminal investigation. And a lawyer source tells Legal Schnauzer that Thomas could face serious consequences in the legal profession, such as loss of his law license.

Thomas is not off the hook yet, and The St. Petersburg Times says that's the way it should be. In an editorial titled "Lack of Disclosure Should Be Pursued," the Times states:

U.S. Supreme Court Justice Clarence Thomas must think it's nobody's business how his wife earns her money. But he is wrong. And his omission of his wife's substantial salary from federal financial disclosures between 2003 and 2009 can be read no other way than a purposeful flouting of the law.

Is the Times buying Thomas' explanation that he "misunderstood" directions on disclosure forms over a 20-year period? Not exactly. In fact, the Times echoes the words of Common Cause, the watchdog group that helped break the Thomas story:

As Common Cause noted, Thomas is "called upon daily to understand and interpret the most complicated legal issues of our day." It is implausible that he "misunderstood simple directions of a federal disclosure form."

The matter, the Times states, should wind up before the nation's top law-enforcement officer, U.S. Attorney General Eric Holder:

Thomas has expressed opposition to public disclosure in the past. He is the single justice who has argued that disclosure requirements for large political donations violate the Constitution. The disclosure omissions may be a statement of personal principles.

Regardless of Thomas' reasons, there is an important public purpose for financial disclosure laws. They allow litigants before the court to assess whether a justice has a conflict of interest that should disqualify him or her from judgment of a particular case.

The 1978 Ethics in Government Act requires federal officials to disclose income from spouses. When federal judges ignore the law, the act directs the Judicial Conference to refer those matters to the attorney general. This seems like a clear case. Despite Thomas' efforts to correct the record, the matter should be pursued.

Martha Stewart surely would agree with that statement. Stewart ended a five-month prison stay in March 2005, and many Americans probably think that was because of insider-trading charges. In fact, Stewart was convicted under 18 U.S.C. 1001 for lying to federal agents.

Track star Marion Jones spent six months in federal prison in 2008 for the same offense. Baseball greats Barry Bonds and Roger Clemens are facing federal prosecution, but it's not for allegedly using steroids--it's for violating 18 U.S.C. 1001.

Stewart, Jones, Bonds, and Clemens, writes one defense lawyer, essentially got in trouble for proclaiming their innocence. If the feds decide a person is lying about his innocence, that person can wind up in prison.

As for Clarence Thomas, he did not proclaim his innocence. He simply, over and over, stated that his wife had no non-investment income--even though she was receiving hundreds of thousands of dollars from conservative advocacy groups.

One of the best articles I've seen on 18 U.S.C. 1001 makes it clear that Thomas almost certainly violated the law. Prosecutors unquestionably have probable cause to bring charges. The crime boils down to "an untrue statement knowingly made with the intent to mislead." And it includes written statements, such as those Thomas made on his financial-disclosure form, marking "none" for his wife's non-investment income.

What would prosecutors need in order to prove the case against Thomas? From the article:

Case Law Interpreting Section 1001

The elements that the Government needs to prove in prosecuting a case under section 1001 are
1) a statement is made
2) the statement is false
3) materiality
4) specific intent, and
5) agency jurisdiction. United States v. Gilbertson, 588 F.2d 584, 589 (8th Cir. 1978).

From where we sit, all of those elements appear to be in place.

What about Thomas' law license? Our source says he could lose it if someone with a spine files a complaint with the proper bar association. After all, our source reminds us, President Bill Clinton was impeached and had his law license suspended for five years for making false statements in the Monica Lewinsky scandal.

Our research indicates that Thomas became a member of the Missouri bar in the 1970s. Recall that his primary political backer for the Supreme Court seat was former U.S. Sen. John Danforth (R-MO). We are not sure if Thomas holds membership in any other bar groups. A complaint to the Missouri Bar, with possible referral to the Missouri Supreme Court, could make life interesting for Clarence Thomas--assuming the legal profession wouldn't go into hyper-protection mode, and that's a big if.

Could Clarence Thomas serve on the Supreme Court without a law license? Could a disbarred lawyer be allowed to remain on the U.S. Supreme Court? The constitution establishes no requirements to serve on the nation's highest court, but all justices so far have been lawyers--although states did not mandate licensing until the 20th century, and those commissioned before the late 19th century, often were self-taught or went through apprenticeships.

Could Clarence Thomas be removed from the bench if he were to lose his law license? The answer seems to be unclear, but we suspect that could happen--assuming anyone in authority has the political will to hold a Supreme Court justice accountable to the very law that he imposes on others.

The St. Petersburg Times is not alone in trying to keep the matter alive. The watchdog group protectourelections.org is calling for Thomas to step down as a Supreme Court justice. It also is calling for career Justice-Department prosecutors to conduct a criminal and ethics investigation. And it calls for an audit of cases that Thomas has heard for possible conflicts of interest. Here is a video released this week by protectourelections.org: