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Law professor looks at whether Supreme Court's Thomas may have violated ethics rules


We're here in Studio 31 at NPR headquarters. On the other side of the glass, in the other room, is our director Lilly Quiroz and our technical director Zac Coleman. And, guys, when I heard this story of a billionaire taking Supreme Court Justice Clarence Thomas on vacation, my first thought was, well, he can do that. The Supreme Court has famously failed to adopt any ethics rules for itself. But when I read a little bit further, the investigation by ProPublica asserted that Justice Thomas violated an actual existing law - not just an ethics guideline, but the law - by failing to disclose almost 20 years of regular vacations and travel. New York University law professor Stephen Gillers is here to talk about it. Good morning.

STEPHEN GILLERS: Good morning.

INSKEEP: What does that law say?

GILLERS: It's the Ethics in Government Act, and it applies throughout the federal government, including to the justices. And so we don't have to worry about the absence of ethics rules for the court because the statute itself enables the government to impose reporting obligations on the justices reporting personal hospitality and gifts.

INSKEEP: Does that mean that Justice Thomas can let someone pay for his vacation, but he just has to tell the government and, in effect, the public that he did so?

GILLERS: Well, yes and no. I mean, he does, and every other federal judge does. Depending upon how you interpret the phrase personal hospitality of an individual, Justice Thomas had a very weak argument that he did not have to report the Harlan Crow princely gifts because they came from Harlan Crow personally. That argument is wrong, but it's not impossible. And he, Justice Thomas, chose to adopt the interpretation that enabled him not to reveal Harlan Crow's generosity.

INSKEEP: Oh, wait. You're saying that - Thomas is saying, I would have to report this if it came from a corporation, and Harlan Crow is, of course, connected with a big interest, but I don't have to report it if it comes from a friend of mine. Is that right?

GILLERS: Well, that's the interpretation that he had - that is, he doesn't have to report personal hospitality, and that means a invitation from a person, which Harlan Crow is, regardless of who is footing the bill and regardless of how luxurious the hospitality may be.

INSKEEP: Well, I'm trying to figure out the appropriate form to pursue this. Democratic Congresswoman Alexandria Ocasio-Cortez is calling for his impeachment. But it's a Republican House. Hard to see that happening. I guess you don't bring it before the Supreme Court. What is the appropriate forum to pursue this question?

GILLERS: Well, I mean, theoretically, there can be a prosecution, a civil or criminal prosecution. The statute gives the attorney general the power to seek civil or criminal remedies, but that's not going to happen.

INSKEEP: In about 10 seconds, could anything happen?

GILLERS: Probably not. I mean, if - well, what has happened is that last month, the Judicial Conference amended its rules so that this cannot happen again post-March.

INSKEEP: OK, the Judicial Conference of the United States, which oversees federal courts. Stephen Gillers, thanks so much. Really appreciate it.

GILLERS: You're welcome.

INSKEEP: He is a New York University law professor. Transcript provided by NPR, Copyright NPR.

Leila Fadel
Leila Fadel is a host of Morning Edition, as well as NPR's morning news podcast Up First.