Five Widely-Believed Myths That Protect Clarence Thomas from Indictment, Arrest and Prosecution

[leveymg]

We've all heard them, the reasons given for why Clarence Thomas can't be immediately removed from the Supreme Court. But, like so much else we've been told, they're mostly a batter of lies with some plain, simple ignorance of Constitutional case law mixed in.

Here are the top 5 reasons given why we should just move along and leave poor Clarence and Ginny Thomas alone, and why most of what we're being told in the corporate media about this is plain pig-headed nonsense:

MYTH 1) Clarence Thomas may have committed some obscure ethics violation, and he’s a creep, but there’s no real crime here for which he might be removed from office. Why do you go on about Indicting Clarence Thomas?

REALITY #1) Clarence Thomas repeatedly falsified the federal Financial Disclosure Form, AO-10. All federal judges fill out these forms annually, and they are signed under oath. He knowingly and willfully failed to disclose his wife’s income from the Heritage Foundation at least five years in a row, 2003-2007. See Exhibit 1, below:

Exhib. 1:


That was a violation of a federal criminal statute, 5 USC App. 104, which makes False Statements punishable by a year in prison and a $50,000 fine for each count.

Exhib 2, The controlling statute:

5 USC App. 104
(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.
(2)
(A) It shall be unlawful for any person to knowingly and willfully
(i) falsify any information that such person is required to report under section 102; and
(ii) fail to file or report any information that such person is required to report under section 102.
(B) Any person who
(i) violates subparagraph (A)(i) shall be fined under title 18, United States Code, imprisoned for not more than 1 year, or both;

It’s not as if Clarence can claim he wasn’t aware that the form was being signed under penalty of law. That warning is printed right on the form below the signature line, as highlighted, below.

Exhib. 3:


****INDICT CLARENCE THOMAS****



MYTH 2) It would be difficult to convict Thomas on that charge, as he is undoubtedly a clever man and a legal genius, who would never try to get away with such a thing.

REALITY #2) Thomas, himself, has publicly admitted he intentionally withheld reporting income on those sworn papers, and recently went back and revised them, disclosing his wife’s $800,000 in undisclosed income during the years 2001-2009. This occurred when questions started to be raised early this year after Common Cause issued a report questioning Thomas’ apparent conflict of interest in hearing cases that involve his wife’s lobbying firm. Thomas says he “misunderstood” the instructions on the Form AO-10.

One problem with that excuse is the AO-10 is not a very complicated form. Another is that he had previously reported his wife’s income on the very same forms, and only stopped doing so after ethics questions were raised in 1996 about gifts he and his wife had received at the time, bringing uncomfortable attention to the Justice and his wife on that earlier occasion. Clarence apparently does not believe the public has any right to know what the sources of his wife's income are, and he didn't want to be bothered, so he simply stopped reporting them. Clarence Thomas, Legal Genius:

Exhibit 4: Clarence Thomas is Too Smart to Commit Such an Obvious Crime



****INDICT CLARENCE THOMAS****



MYTH 3) A federal judge enjoys absolute immunity and cannot be held accountable for criminal acts.

REALITY #3) Qualified judicial immunity extends only to official acts of federal judges, including Members of the U.S. Supreme Court. Administrative and ministerial acts -- such as falsifying financial disclosure forms – are not held to be judicial acts, and are not subject to immunity.


****INDICT CLARENCE THOMAS****



MYTH 4) Here’s a myth that a lot of people seem to believe: sitting federal Judges cannot be arrested or Indicted. They have to be removed from office by Impeachment, first.

REALITY #4) Many federal Judges have been arrested for criminal misbehavior, arraigned, tried and imprisoned. Here's an article from 2008 about a Federal Judge who was indicted in Texas on Sexual Abuse charges: http://abcnews.go.com/TheLaw/FedCrimes/story?id=5681319&page=1

Federal Judge Indicted in Sex Abuse Case


By THERESA COOK and GINA SUNSERI
Aug. 29, 2008

A federal judge in Texas stands accused of sexually abusing one of his staff members, according to charges filed Thursday.
A federal grand jury returned a three-count indictment against U.S. District Court Judge Samuel B. Kent, 59, for abusive sexual contact and attempted aggravated sexual abuse.

The alleged victim, identified only as "Person A" in the indictment, worked as a deputy court clerk assigned to Kent's court, the document says. A complaint against Kent filed with a judicial review panel in May 2007 identifies the woman as Cathy McBroom.
During an alleged incident in March 2007, Kent "attempted to cause Person A to engage in contact between Person A's mouth and defendant Kent's penis by forcing Person A's head toward defendant Kent's groin area," the indictment charges.

Additionally, the court documents allege that Kent "did knowingly engage in sexual contact with another person without that other person's permission" by inappropriately touching the alleged victim "with an intent to abuse, humiliate, harass, degrade" during the March 2007 incident and another in August 2003. The indictment says that all of the alleged incidents occurred at the federal courthouse in Galveston, Texas, where Kent and McBroom worked. The Justice Department said in a statement that the FBI is involved in the investigation.

****INDICT CLARENCE THOMAS****



Myth 5: Supreme Court Justices Have to be Impeached; They Can’t be Removed by Prosecution

Reality #5:We’ve heard this over and over again – don’t even bother going after Thomas, the House of Representatives has to vote to Impeach him, first – not going to happen. Move along, nothing to see, folks. That is perhaps the most glaring myth that protects Clarence from his day of accounting. But, if Clarence Thomas were indicted for a federal crime, he would never hear another case. He would be facing at least five years in prison. Just get on with it, Mr. Attorney General. Indict Clarence Thomas.

As I’ve pointed out, There was a Supreme Court Justice arrested and charged w/murder in 1889 http://symonsez.wordpress.com/2010/08/14/when-a-sitting-us-supreme-court-justice-was-charged-with-murder/

Justice Field was pardoned by the Governor of California (state charge) but his bodyguard's case made it all the way to the U.S. Supreme Court. There was never an issue raised about whether a sitting Judge, SC or any other, can be prosecuted. The Court found the bodyguard, who shot a US Senator who was trying to kill Field, had acted properly pursuant to his official authority as a US Marshal. Politics was a really serious blood sport in the decades after the Civil War, unlike today, when everyone in Washington is “moving forward” together, both parties hand-in-hand. Kumbaya.

If Justice Field were around today, he too would be saying, “Indict Clarence Thomas.”



Yes, Virginia, there's precedent for prosecuting Assoc. Justice Thomas. Just Indict Clarence Thomas.

Indeed, the only thing standing between Clarence Thomas and DC Jail is Eric Holder.

****INDICT CLARENCE THOMAS****

[monmouth]

1. I fear Clarence says to Ginny over dinner: "Don't worry about a thing

hon, a black President and a black Attorney General indicting a black SC Justice? Aint. never. gonna. happen." I fear he may be right.

[hay rick]

2. He's grandfathered in on Bushco immunity. nt

[leveymg]

3. Truly, that is the Supreme Law of the Land. ; - )

Moving forward . . .

[izquierdista]

8. What's the old saying?

He'd have to be found in bed with a dead girl or a live boy? In Clarence's case, it would have to be both, and they would both have to be minors to make it stick.

[ejpoeta]

34. while sending pictures of his junk on twitter.

[aquart]

5. Yet they may be the only ones who can.

Just subpoena his financial records. Find the porn purchases. That will finish him.

[vi5]

4. I really didn't need to read all of that.....

Yes, I'm sure all of those are "technically" and "legally" true.

But the reason he'll never be prosecuted is that he's a Republican. Republicans 95% of the time get away with anything and everything they want in the political sphere. Both because they bluster and whine and complain about their own perceived martyrdom, and also because most elected Democrats are suckers and fall for it and then try to pitch the "Let's look ahead" bullshit excuse as to why they don't follow through on anything when it comes to prosecuting or calling Republicans out on their bull shit.

[leveymg]

6. Kinda hard to argue with that point.

First round's on me. :beer:

[TheMadMonk]

9. NO! EN OH! The problem is that the people expected to do "something"...

...about this, that and the other are EVERY BIT AS CORRUPT as the people doing "this, that and the other".

[vi5]

12. O.K.....I agree with that...

I do think it's corruption as well. But it seems like it's unacceptable to point that out on DU because we're just supposed to clap louder and blame everything on Republicans.

[COLGATE4]

10. Yep - the old IOKIYAR defense. Works every time.

[rhett o rick]

11. Our corporate overlords dont want him to be punished. The Democrats are helpless. nm

[vi5]

13. No. Not helpless.

Helpless means someone without power to fix or to help a situation. The Democrats have plenty of power.

They choose not to use it. It's willful inaction and it's just as bad and just as dangerous.

[rhett o rick]

14. I realize that this is a moot argument, but if they have the power, why do they choose not to use it

? I think they are puppets like the president.

[vi5]

15. Because...

They benefit from the same offensive level of cash flow as the Republicans do.

The only difference is that whereas the Republicans come 90% from big corporations and the wealthy, Democrats come maybe 60-70% from corporations and the wealthy. So they need to thread the needle and at least pay lip service to working and middle class interests. They're just getting worse and worse and that pretense though.

[rhett o rick]

16. Yes, they are playing "bad cop, worse cop". nm

[Pacifist Patriot]

18. The word is complicit.

[rhett o rick]

40. You're right but I like "helpless". Maybe even "hapless". nm

[enough]

7. k&r (nt)

[Joe Bacon]

17. Won't happen.

Thomas is above the law, just like every other Republican. He could kill his wife and still get away with it.

[hack89]

19. The only questions I would have

is just how common are violations and of those violations, how many lead to actual prosecution. Or in other words, is the current treatment of Thomas the norm or is he an exception to past practice.

[leveymg]

20. Thomas is the exception inasmuch as he is the only Justice who has been shown to

have a pattern and practice of knowing and willful violations of 5 USC App. 104. The operative terms are knowing and willful. He can also be charged with the all-purpose federal fraud and willful misrepresentation felony statute, 18 USC 1001, which carries a maximum five years term for each count.

He can and should be investigated by the US Attorney and prosecuted for this. The evidence shows knowledge and intent to break the law - this is neither a technical violation nor due to an accounting error or oversight on Thomas' part. Under the circumstances, it is the duty of Eric Holder to convene a Grand Jury to obtain an Indictment against Clarence Thomas.

If a Grand Jury returns an Indictment against Clarence Thomas for these violations, his career as Associate Justice of the Supreme Court is over. He will never hear another case from the bench, regardless of what the House of Representatives does or doesn't do to Impeach him.

[hack89]

21. "Willful" is merely your personal judgment

I seriously doubt that his case is unique in the history of enforcing 5 USC App. 104 - what does history tell us about how these cases are handled?

[leveymg]

22. "Knowing and Willful" are apparent from the behavior of Clarence Thomas. It's a "prima facie" case.

I have not seen reference to prosecution of a federal Judge under this statute. However, there have been cases involving other federal employees. Here's something that addresses this issue, federal guidelines and case law, and the history of enforcement actions: http://wickershamsconscience.wordpress.com/2011/01/28/justice-clarence-thomas-scofflaw/

The Department of Justice Handbook on Prosecutions explains that persons with expertise in law are presumed to act “knowingly and willfully,” and a defendant’s signature on a document can help establish willfulness and knowledge. See United States v. Tucker, 133 F.3d 1208, 1218 n. 11 (9th Cir. 1998) (noting that signature proved knowledge of contents of return); United States v. Mohney, 949 F.2d 1397, 1407 (6th Cir. 1991) (holding that signature is prima facie evidence that the signer knows the contents of the return); United States v. Drape, 668 F.2d 22, 26 (1st Cir. 1982) (finding that defendant’s signature is sufficient to establish knowledge once it has been shown that the return was false).

Justice Thomas’s conduct is similar to that of an FBI employee who oversaw background investigations for the agency in San Francisco. Rachelle Thomas-Zuill 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. Thomas-Zuill, who joined the FBI 13 years ago, pleaded guilty last week to making false statements to a government agency, a felony. She will be sentenced April 7th by U.S. District Judge Jeremy Fogel in San Jose. The Department of Justice civilly prosecuted two other recent false statement cases. In United States v. Dr. William L. Smith , a NASA scientist was charged with violating 18 U.S.C section 208(a), and he settled the case for a substantial fine. In United States v. John R. Van Rosendale , a DOE employee failed under 5 U.S.C. app. section 104 to file a termination financial disclosure report when he left his Government position. He was also fined.

Justice Thomas has since announced that he had now amended the last 20 years of financial disclosure forms to include his wife’s income.

[hack89]

23. Not sure we are talking apples to apple there

Thomas-Zuill flat out lied about her own income and debts - not a spouse.

Dr. Smith violated 18 U.S.C section 208(a) - he actively intervened in a matter though his official capacity for an entity that he or a family member had a financial interest in. It was about abuse of power - not forgetting to list his wife's income. Unless you have specific information that Thomas' wife has benefited directly from any decision he has made. Do you have such information?

I guess my issue with this entire thing is that I don't see how he or his wife have benefited in anyway. If he was trying to cover up an abuse of power that personally enriched him or his wife, I could understand the concern. But it seems to me you want him impeach merely for not listing his wife's income - I know it was required but is it truly an impeachable offense? I think the bar needs to be a lot higher than that.

[leveymg]

25. Are you seriously suggesting that Clarence "forgot" to list Ginny's income for 20 years?

The element of direct gain or personal enrichment need not be shown to obtain a conviction under 5 USC App. 104 or 18 USC 1001. This wasn't harmless error - the plaintiffs in hundreds of cases, including Citizens United, could have challenged Thomas' standing to hear the case and requested he recuse himself because of the apparent Conflict of Interest (accurate) AO-10 reports would show. Thomas also defrauded the United States by his False Statement, and that harm stands independently of particular harm done to any individual plaintiff.

The element of knowledge and criminal intent is evident in the fact that he had been reporting his wife's income before 1996, and that he stopped doing so after his wife's income became an issue in an earlier conflict of interest matter. Personal enrichment isn't the only element that can go toward a showing of "knowing and willful". A showing that Thomas' failure to report his wife's income at Heritage was motivated by political advantage and considerations, of which Thomas is clearly aware of, would demonstrate the element of motive.

The "personal gain" issue is a red-herring.

I think a competent, willing and determined US Attorney could make such a case to the standard required by law for conviction.

[hack89]

27. Are you seriously suggesting that he benefited in anyway from it?

Go look at all the Federal judges that have been impeached. Look at how serious their offenses were. Then try to tell me just how this "crime" reaches that level.

Impeaching judges is the favored tactic of the RW - it is how they remove judges that support yours and mine civil rights. Impeachment is the favored weapon used against progressive judges. Lowering the bar to get Thomas will make you feel better but will do serious damage to America.

[leveymg]

29. Now you're talking about standards for Impeachment which are different from prosecution

The harm that Clarence Thomas did to the integrity of the Supreme Court by his willful omission and misrepresentation in an effort to avoid public scrutiny of and controversy surrounding his wife's lobbying and political work probably does worse damage than the federal judge who was arrested and tried for buying cocaine from a prostitute in 2009.

No, this is not a minor or isolated offense. It goes to the pattern and practice of lawlessness, ethics violations, and bad behavior of Clarence Thomas make him impeachable.

Indict Clarence Thomas. That's a legal matter involving procedures and standards of legal evidence separate from his impeachment, the outcome of which is primarily political.

Indict Clarence Thomas.

[hack89]

30. No - unless you can actually show the damage done by

his wife's lobbying and political work. She represents ideas and causes you don't like - got it. Now tell me the real harm done here. Point at those cases where knowing his wife's income would have made a difference. It is not like her lobbying activities were secret - everyone knew what she was doing.

Care to enumerate all those other instance where Thomas actually broke the law (upsetting your sensibilities not counting as breaking the law)?

[leveymg]

31. That is not a legal requirement to obtain an Indictment under 5 USC App. 104 or 18 USC 1001

I'm not going to debate with you here the merits of Impeachment, which is a different issue.

As I've already shown, there's a prima facie case to Indict Clarence Thomas.

I have to go now, but will check back for other comments later. Thank you for playing our game. ;-)

[hack89]

32. Thanks for admitting it is only a game to you

to get at a political opponent.

[leveymg]

33. In a manner of speaking. On edit: this discussion was useful

in developing the line of argument. Thank you for your input.

[hack89]

35. It still needs a lot more refining. nt

[hack89]

24. How did he or his wife benefit from this?

are you arguing that he did this to cover up actual abuses of power? Can you document what those abuses were?

[leveymg]

26. The "personal gain" issue is a red herring. See my response at, "Are you seriously suggesting . . .

[hack89]

28. Of course it is - silly me. nt

[defendandprotect]

36. Clarence Thomas also gets legal advice - someone looked over his filings and knew better!

[NewJeffCT]

37. The GOP will just play false equivalency

They'll say Geithner and a few others in the Obama White House lied on their income taxes and they're not in jail, why should Thomas be different? Is it another high-tech lynching?

[valerief]

38. Politics is still a blood sport. They just call the deaths suicides now. nt

[provis99]

39. this can all be counteracted by one thing:

the laws apply to the little people, not to the politcal elite of the country.

That fact is more powerful than all the technical legal arguments you care to make.

[blackspade]

41. Excellent OP

****INDICT CLARENCE THOMAS****

[rpannier]

42. Love the picture

I didn't know you could get Supreme Court Justice cards in the 1890's
Do they have his Judicial Stats on the back?

On a serious note Good OP
Wish I had seen it in time to rec it

[fasttense]

43. It's not just Thomas's hiding his wife's bribes.

Thomas also accepted gifts and vacations from organizations with matters before the Supremes.

Scalia accepts trips and speaking fees from organizations (and Cheney) with matters before the Supremes.

And if memory serves me, Roberts was complaining he wasn't making enough money and then he fell quiet about his pay.

We don't know what the rest of the black robed junta is getting in bribes and supposed gifts until they are investigated. I do believe that Thomas is just the tip of the iceberg.

It is just so obvious how corrupt the Supremes have gotten and everyone pretends these justices follow law and precedent. They merely follow their political whims and the money.