Tuesday, January 25, 2011

Will Clarence Thomas Get Away With a Federal Crime?

Clarence Thomas

U.S. Supreme Court Justice Clarence Thomas is amending financial-disclosure forms dating back more than 20 years, in an apparent effort to avoid prosecution for making false statements to the United States government.

Hal Neilson, an FBI special agent in Oxford, Mississippi, undoubtedly wishes he had been given such an opportunity. He also probably wishes the mainstream press would try to make the kind of excuses for him that are being made for Clarence Thomas.

Neilson was indicted on January 14 for failing to disclose his financial interests and making false statements to a federal agency. According to a Mississippi-based law blog, Neilson was indicted under 18 U.S. Code 1001. That's the same law that Thomas clearly violated when he failed to disclose almost $700,000 of his wife's income over at least a five-year period.

Thomas, with the help of the Supreme Court's public-information office, has released information that indicates he is trying to amend his forms going back to 1989. That means the amount of undisclosed income probably is way more than the $686,589 that was originally reported by the watchdog group Common Cause.

While the machinery of America's highest court appears to be trying to help Clarence Thomas get away with a felony, no one seems to be offering Hal Neilson a chance to amend his statements. Neilson is charged with five counts of making false statements and faces up to 25 years in prison and a $1.5 million fine.

Hal Neilson

Do we have a two-tiered justice system, one for elites such as Clarence Thomas and one for everybody else? It sure looks that way. And we probably should not hold our breaths expecting the Obama administration to do anything about it. The U.S. Department of Justice does not have to let Thomas off lightly just because he is trying to cover up his crimes. But does anyone seriously think Attorney General Eric Holder, he of the "look forward, not backwards" doctrine on GOP crimes, is going to prosecute a Supreme Court justice who was appointed by President George H.W. Bush?

While Clarence Thomas is likely to get away with a wrist slap, if that, the feds are hardly going easy on Hal Neilson. Here is how Mississippi lawyer Clarence Guthrie, on his blog, describes the issues Neilson faces:

Under Title 18, United States Code, Section 1001, it is a crime to:

1. knowingly and willfully;
2. make any materially false, fictitious or fraudulent statement or representation;
3. in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.

This was the charge that Martha Stewart served time for. It is a crime to tell a lie to the federal government. Even if your lie is oral and not under oath, and even if you have received no Miranda warnings of any kind. You must know that your statement is false at the time you make it, but you do not have to know that lying to the government is a crime. Any person convicted under this statute faces statutory penalties of a possible fine, and up to 5-8 years in prison.

How did Hal Neilson wind up stuck in this brier patch? What did he do that makes the feds want to send him to prison for up to a quarter century? Here is how Clarence Guthrie describes it in a post dated January 15, 2011:

An FBI Agent in Oxford, Mississippi was indicted this week for making false official statements to a federal official, among other things. The agent was the Supervisory Agent in Charge of the FBI’s Oxford Resident Agency, and the indictment charges that he failed to disclose that he had a financial interest in the Oxford FBI Building since 2004, and that he was not truthful on his Confidential Financial Disclosure Report that FBI Agents are required to fill out. Finally, it is alleged that he knowingly and willfully made, and caused to be made, a materially false and fraudulent statement and representation to an agent of the Department of Justice, Office of the Inspector General, during an interview. This is a big case, and if you happen to be reading this while doing research for your term paper on irony, it’s the best example I’ve ever seen.

Guthrie wrote those words about irony before the Clarence Thomas story broke over this past weekend. Wonder how much irony Guthrie sees in all of this now.

Let's break down the material in bold above to determine exactly what Neilson is alleged to have done:

* He failed to disclose that he had a financial interest in something. (Clarence Thomas did that.)

* He was not truthful on his financial disclosure form. (Neither was Clarence Thomas.)

* He made a materially false and fraudulent statement and representation to the federal government. (Clarence Thomas did that, too.)

Now, let's do some math. It appears that the feds are seeking a 25-year prison term for Neilson, based on five years for each of five counts under 18 U.S.C. 1001. Based on information currently available to us, it appears Clarence Thomas made false statements over at least a 20-year period, from 1989 to 2009. Using the same sentencing guidelines that are being applied to Hal Neilson, that means Thomas should be looking at about 100 years in federal prison.

As for the $1.5 million fine the government is seeking against Neilson, Thomas apparently should face about four times more counts than the Mississippi FBI agent. That should come to a $6 million fine for Mr. Justice, Your Honor.

As for the mainstream press, it seems to be playing a role in helping to excuse Thomas' actions. The Washington Post reported that the applicable law, 5 U.S.C. App. 101-111, does not require Thomas to report the amount of his wife's income. That, of course, is irrelevant, because Clarence Thomas checked "None" under "Spouse's Non-Investment Income." Regardless of the amount, that is a false statement, under the law. Also, the Post neglects to mention that Section 104 of the law references possible criminal penalties under Title 18 of the U.S. Code. That would be Section 1001, which we have discussed above--and the Post, curiously, does not care to mention it.

Also, The Los Angeles Times reported the following:

In most cases, judges simply amend their forms when an error is discovered.

Interestingly, the Times cited no law, or legal authority, to support this contention. That's because there isn't any. And we are supposed to believe that Clarence Thomas made the same "error" for roughly 20 years, over and over again?

Let's return to Clarence Guthrie's blog for some final thoughts about irony, as it applies to 18 U.S.C. 1001:

In summary, it is a sad fact that the government applies a far higher moral standard to you than to itself. Law enforcement officers can lie to you to get you to make a statement, but you cannot lie to them. And know this: the federal government can send you to prison for telling a lie, even though they could never charge you with any other crime.

Regular Americans also should know this: The same legal establishment that will circle the wagons to protect Clarence Thomas, has no problem heaping all sorts of abuse on you or me.

Our courts are supposed to belong to "We, the People." Taxpayers fund our justice system. Who pays for the fancy courthouses, the filing systems, the clerk's offices, the security? We do. But lawyers and judges have turned it into a dysfunctional mess that benefits them and almost no one else.

Judges are so arrogant that they often refer to their quarters as "my courtroom." Next time you hear a judge say that, you have my permission to stand up and say, "Hey Bub, this is my courtroom. My fellow taxpayers and I pay for it. You're only here because you swore under oath to uphold the actual law. So why aren't you doing it?"

Next time a lawyer tells you he will take your case for the low-low price of $450 an hour, feel free to tell him or her this: "Hey, you are an officer of the court, and my tax dollars pay for that court-the whole shebang. So explain to me why I have to pay you that kind of dough when I already pay for the court system that supports your sorry butt."

In essence, lawyers and judges have taken our publicly funded courts and turned them into a private money-making machine--one that makes them rich, while dispensing very little "justice" for the rest of us.

The Clarence Thomas and Hal Neilson stories provide a classic example of how our justice system has been co-opted by elites. How much longer will regular Americans stand for it?


Anonymous said...

That thing about openly questioning the courts and lawyers sounds good, but in practice it's more than likely to just get you in a legal jam.

Anonymous said...

Will Clarence Thomas Get Away With a Federal Crime?
Those at the highest levels of government have an array of resources to squirm their way out of TROUBLE:

Notice the October22,2004 dates.

Case of a lifetime
Published: October 22, 2004

NORFOLK - Judge Robert G. Doumar had just finished a putt on the 10th green at the Tartan Golf Course earlier this month when a cart pulled up, and off stepped a man in a dark suit carrying a briefcase attached by a chain to his wrist.

In a line out of a Hollywood spy thriller, the man said something like: "Judge, I have some papers for you. They are classified and for your eyes only."

Doumar left the course ...

Word of the chief justice's battle with thyroid cancer came out soon after he entered the National Naval Medical Center at Bethesda, Md., on Oct. 22, 2004, to undergo a tracheotomy. Cancer experts said his treatment indicated he likely had the most serious form of the disease, although neither Rehnquist nor his doctors revealed details about the extent of his illness at the time.

Anonymous said...

I understand your point and think it is an accurate one, besides a major mistake. I am a journalist and hate learning I published false information, please don't hate me.

However, what you've written about Hal Neilson isn't quite right and casts a false light on him. Neilson was indicted and went to trial last year. He was found not guilty on multiple counts and hung the jury on the others. The U.S. Attorney's office came back and said they wouldn't try him again. I believe right now he's retired/retiring and will collect his pension.

This link should help.

However I agree with you, I don't see Thomas getting indicted. Where's the justice?

legalschnauzer said...

Anon No. 2:

Thank you for the update about the Nielson case. I did not realize it had gone to trial. I will do an update on that today.

Anonymous said...

Nothing in your post indicates that Justice Thomas "knowingly and willfully" made these misrepresentations. Without evidence of intent, I doubt a prosecutor would waste time pursuing a conviction.

legalschnauzer said...

Anon No. 3:

You don't think making the same "mistake" for 20 years might have something to do with intent--especially when it has to do with his wife's income from a conservative "think tank"?

Reasonable minds can disagree, but I don't know how much more "willingly" and "knowingly" you can get than that.

Anonymous said...

Again, it is hard to say that justice has failed when there is only circumstantial evidence of his intent. Not only do you have to make the inference that 20 years of misfiling is intent to defraud, but you also have to make the inference that it was the intent of Justice Thomas, and not his wife's intent.

To prove a criminal act, there has to be proof beyond a reasonable doubt. If a prosecutor attempted to convict Justice Thomas under this law, the prosecutor would inevitably fail to meet this standard. In short, indicting Thomas on such a lack of evidence would result in a waste of gov time and money because it is a weak case.

With regards to your title, what ever happened to innocent until proven guilty?

legalschnauzer said...

The headline is asking a question. It isn't making a statement that Clarence Thomas committed a federal crime, although the evidence at this point seems overpowering that he did, in my view.

Anonymous said...

In short, indicting Thomas on such a lack of evidence would result in a waste of gov time and money because it is a weak case.
What's the color of the sky on the planet you have been living on.

That certainly sounds VERY QUAINT.

You must meet Karl Rove and his minions. They really have a way of changing a one's perspective.

legalschnauzer said...

I don't think the case against Thomas is weak. In fact, it's hard to see how it could be any stronger. After all, his signature is on all of these documents, certifying that they are true, when they are not. What's weak is the will to impose the law on a Supreme Court justice. The will is weak to hold judges accountable in general.

Redeye said...

Anonymous need I remind you and other Clarence Thomas defenders that former President Bill Clinton was impeached by the House of Representatives for trying to conceal a private, consensual, sexual affair from his wife, daughter and the country?

TJColatrella said...

Sam Alito is a criminal too as I know and lived and suffered in NJ after drunk cops crashed into me and then retaliated against me and even my girl and her little kids for years all with his blessing and protection...These Federalist Society SCOTUS members are Tory Totalitarian Hypocritical Swine...!

TJ Colatrella..!

TJColatrella said...

All these Federalist Society members of SCOTUS are Tory Swine liars and Hypocrites! Sam Alito is a criminal as I know and Suffered for years first hand..!