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Tipsheet

Senate Democrats Demand DOJ Bring Their Lawfare Against Clarence Thomas

AP Photo/Patrick Semansky

Senate Democrats are ramping up their assault on the Supreme Court. More specifically, on conservative Justice Clarence Thomas. 

Democratic Senators Sheldon White House and Ron Wyden are demanding Attorney General Merrick Garland appoint a Special Counsel to investigate gifts received by Thomas. Thomas did not disclose the gifts, like many liberal justices on the Court, because it is not required. 

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"We write to request that you appoint a Special Counsel to investigate possible violations of federal ethics and tax laws by Associate Justice of the Supreme Court Clarence Thomas. Over the past year, public reporting and Senate investigations have uncovered evidence of repeated and willful omissions of gifts and income from Justice Thomas’s financial disclosure reports required by the Ethics in Government Act," Whitehouse and Wyden wrote in a letter to Garland Tuesday. 

"No government official should be above the law. Supreme Court justices are properly expected to obey laws designed to prevent conflicts of interest and the appearance of impropriety and to comply with the federal tax code. We therefore request that you appoint a Special Counsel authorized to investigate potential criminal violations by Justice Thomas under the disclosure, false statement, and tax laws; pursue leads of related criminal violations by donors, lenders, and intermediate corporate entities; and determine whether any such loans and gifts were provided pursuant to a coordinated enterprise or plan," they continued. 

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Despite the screed and claims of illegality, Supreme Court Justices are not legally required to disclose gifts. The letter fails to mention the need for investigations into liberal Supreme Court Justices Sonja Sotomayor, Elena Kagan and Ketanji Brown Jackson for accepting gifts that were not disclosed. 

Two weeks ago in the presidential immunity decision released by the Supreme Court, which ruled U.S. presidents have immunity for official acts, Justice Thomas questioned the constitutionality of Special Counsels. 

"Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be," Thomas wrote. "Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if 'Congress...by law vest[ed] the Appointment' in the Attorney General as a 'Hea[d] of Department.' ... So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it 'by Law.'"

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