Thursday Reads

Good Morning!!

Everyone is talking about the shocking story about Clarence Thomas published early this morning at ProPublica. We knew that Thomas was corrupt, but the scale of the corruption revealed by authors Joshua Kaplan, Justin Elliott, and Alex Mierjeski is beyond mind-boggling. And they provide plenty of photos of Thomas enjoying luxury accommodations alongside the wealthy and powerful. Thomas never reported any of these gifts.

From the article:

IN LATE JUNE 2019, right after the U.S. Supreme Court released its final opinion of the term, Justice Clarence Thomas boarded a large private jet headed to Indonesia. He and his wife were going on vacation: nine days of island-hopping in a volcanic archipelago on a superyacht staffed by a coterie of attendants and a private chef.

If Thomas had chartered the plane and the 162-foot yacht himself, the total cost of the trip could have exceeded $500,000. Fortunately for him, that wasn’t necessary: He was on vacation with real estate magnate and Republican megadonor Harlan Crow, who owned the jet — and the yacht, too.

For more than two decades, Thomas has accepted luxury trips virtually every year from the Dallas businessman without disclosing them, documents and interviews show. A public servant who has a salary of $285,000, he has vacationed on Crow’s superyacht around the globe. He flies on Crow’s Bombardier Global 5000 jet. He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and to Crow’s sprawling ranch in East Texas. And Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks.

The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.

These trips appeared nowhere on Thomas’ financial disclosures. His failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts, two ethics law experts said. He also should have disclosed his trips on the yacht, these experts said.

Get this: Thomas even went with Crow to the legendary Bohemian Grove.

More from the ProPublica article:

In a statement, Crow acknowledged that he’d extended “hospitality” to the Thomases “over the years,” but said that Thomas never asked for any of it and it was “no different from the hospitality we have extended to our many other dear friends.”

Through his largesse, Crow has gained a unique form of access, spending days in private with one of the most powerful people in the country. By accepting the trips, Thomas has broken long-standing norms for judges’ conduct, ethics experts and four current or retired federal judges said.

“It’s incomprehensible to me that someone would do this,” said Nancy Gertner, a retired federal judge appointed by President Bill Clinton. When she was on the bench, Gertner said, she was so cautious about appearances that she wouldn’t mention her title when making dinner reservations: “It was a question of not wanting to use the office for anything other than what it was intended.”

Virginia Canter, a former government ethics lawyer who served in administrations of both parties, said Thomas “seems to have completely disregarded his higher ethical obligations.”

“When a justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust,” said Canter, now at the watchdog group CREW. “Quite frankly, it makes my heart sink.”

ProPublica uncovered the details of Thomas’ travel by drawing from flight records, internal documents distributed to Crow’s employees and interviews with dozens of people ranging from his superyacht’s staff to members of the secretive Bohemian Club to an Indonesian scuba diving instructor.

I haven’t finished reading the article yet, but I definitely will go back to it today.

This is from John Wagner at The Washington Post: Justice Thomas accepted luxury travel for years from GOP donor, report says.

Federal law mandates that top officials from the three branches of government, including the Supreme Court, file annual forms detailing their finances, outside income and spouses’ sources of income, with each branch determining its own reporting standards.

Judges are prohibited from accepting gifts from anyone with business before the court. Until recently, however, the judicial branch had not clearly defined an exemption for gifts considered “personal hospitality.”

Revised rules adopted by a committee of the Judicial Conference, the courts’ policymaking body, seek to provide a fuller accounting. The rules took effect March 14.

Gifts such as an overnight stay at a personal vacation home owned by a friend remain exempt from reporting requirements. But the revised rules require disclosure when judges are treated to stays at commercial properties, such as hotels, ski resorts or corporate hunting lodges. The changes also clarify that judges must report travel by private jet….

While the wide scope of Crow’s funding of Thomas’s travel has not been previously reported, the largesse of the billionaire donor directed at the justice has provoked controversy previously.

In 2011, the New York Times reported that Crow had done many favors for Thomas and his wife, notably financing the multimillion-dollar purchase and restoration of a cannery in Pin Point, Ga., that was a pet project of the justice.

The Times also reported that Crow helped finance a Savannah, Ga., library project dedicated to Thomas, presented him with a Bible that belonged to Frederick Douglass and reportedly provided $500,000 for Ginni Thomas to start a tea-party-related group.

Thomas, who joined the court in 1991, has drawn scrutiny on other ethical issues in recent years, several related to the political activism of his wife. She has been allied with numerous people and groups that have interests before the court, and she has dedicated herself to right-wing causes involving some of the most polarizing issues in the country.

In other news, reporters and legal experts are busy critiquing Manhattan District Attorney Alvin Bragg’s case against Donald Trump. Here’s one of the worst:

Shugerman writes: The Trump Indictment Is a Legal Embarrassment.

Tuesday was historic for the rule of law in America, but not in the way Alvin Bragg, the Manhattan district attorney, would have imagined. The 34-count indictment — which more accurately could be described as 34 half-indictments — was a disaster. It was a setback for the rule of law and established a dangerous precedent for prosecutors.

This legal embarrassment reveals new layers of Trumpian damage to the legal foundations of the United States: Mr. Trump’s opponents react to his provocations and norms violations by escalating and accelerating the erosion of legal norms.

The case appears so weak on its legal and jurisdictional basis that a state judge might dismiss the case and mitigate that damage. More likely, the case is headed to federal court for a year, where it could lose on the grounds of federal pre-emption — only federal courts have jurisdiction over campaign finance and filing requirements. Even if it survives a challenge that could reach the Supreme Court, a trial would most likely not start until at least mid-2024, possibly even after the 2024 election.

Instead of the rule of law, it would be the rule of the circus.

Let’s start with the obvious problem that the payments at issue were made around six years ago. The basic facts have been public for five years. There are undoubtedly complicated political reasons for the delay, but regardless, Mr. Bragg’s predecessor, Cyrus Vance Jr., had almost a year to bring this case after Mr. Trump left office, but did not do so, and Attorney General Merrick Garland’s Justice Department also declined. To address the perception of a reversal and questions of legitimacy, Mr. Bragg had a duty to explain more about the case and its legal basis in what’s known as a “speaking indictment,” which the team of former counsel Robert Mueller made famous in its filings.

Legal experts have been speculating about the core criminal allegation in this case, because the expected charge for “falsifying business records” becomes a felony only “when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”

Astonishingly, the district attorney’s filings do not make clear the core crime that would turn a filing misdemeanor into a felony. Neither the 16-page indictment nor the accompanying statement of facts specifies, though the statement of facts does drop hints about campaign laws. In a news conference, Mr. Bragg answered that he did not specify because he was not required to by law. His answer was oblivious to how law requires more than doing the minimum to the letter — it demands fairness, notice and taking public legitimacy seriously. 

Phew! Now that’s a smackdown! 

Here’s different point of view from high profile attorney Harry Litman:

From the Los Angeles Times: Column: Don’t underestimate the strengths of Alvin Bragg’s case against Donald Trump.

Manhattan Dist. Atty. Alvin Bragg’s indictment of former President Trump takes an open-ended approach to the charges that some critics of the unprecedented prosecution see as a weakness. What the detractors have overlooked are the substantial and unanticipated legal and factual strengths in the case Bragg outlined.

A key question in advance of Tuesday’s unsealing of the indictment concerned how Bragg would augment the easily proven misdemeanor charges of falsifying business records. Under New York law, those offenses become felonies only if they’re in furtherance of another crime. Many theories were circulating as to what second crime Bragg would allege, and most of the possibilities had noteworthy shortcomings.

Bragg’s answer was essentially “I’ll tell you later.” He took advantage of the wording of the state law, which requires only that the misdemeanor be done in service of “a crime,” to buy himself maximum time and flexibility.

Bragg may have to pick his crime down the line, perhaps in answer to an expected defense motion for a “bill of particulars” — that is, a fleshing out of the Delphic indictment to enable Trump’s team to prepare an appropriate defense.

On the other hand, the prosecutor may not have to specify a second crime. The jury instructions on falsification of business records say it’s a felony if the defendant acted “with intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof.” It’s therefore not clear that they require the jury even to agree on what the augmenting crime is.

But Bragg this week also added a potent possible second crime beyond what many observers expected. It emerges from the fact that in making his lawyer Michael Cohen “whole” for the hush money he paid to Stormy Daniels, Trump included enough to compensate Cohen for the taxes he would have to pay on the “income” — that is, on the phony legal retainer that camouflaged the hush money.

It’s not clear whether Cohen in fact declared and paid taxes on the reimbursement or whether the Trump Organization declared it as a business expense. The Bragg team’s insight is that it doesn’t matter: The language that elevates business record falsification to a felony only requires “an intent to commit another crime or to aid or conceal the commission thereof.”

That purposely encompasses what lawyers call “inchoate” crimes. The law would plainly be satisfied by the inclusion of money intended to commit or conceal another crime — namely, a false tax filing — whether or not that crime occurred.

Importantly, this theory could be a way around the legal questions inherent in alleging that the second crime was a state or federal campaign finance violation.

Read the rest at the LA Times.

Another big and disturbing story is happening in Tennessee.

From Reuters: Tennessee Republicans likely to expel three Democratic lawmakers from statehouse.

Republicans who control the Tennessee House of Representatives will vote on Thursday on whether to expel three Democratic members for their role in a gun control demonstration at the statehouse last week.

Last Friday’s protest saw hundreds of demonstrators flood into the statehouse, four days after a Nashville school shooting ended with three 9-year-old children and three school staff members dead.

Three Democratic lawmakers stood on the House floor and used a bullhorn to lead protesters in chanting demands for stricter gun laws. In the resolutions calling for their expulsion, Republicans accused the three of engaging in “disorderly behavior” and said they “did knowingly and intentionally bring disorder and dishonor to the House of Representatives through their individual and collective actions.”

The expulsion vote is likely to easily pass in the Republican-dominated House and lead to the ouster of Rep. Gloria Johnson, Rep. Justin Jones and Rep. Justin Pearson. They say they were within their First Amendment rights to take part in the protest.

“It’s morally insane that a week after a mass shooting took six lives in our community, House Republicans only response is to expel us for standing with our constituents to call for gun control,” Jones wrote on Twitter this week. “What’s happening in Tennessee is a clear danger to democracy all across this nation.

Republicans Rep. Andrew Farmer, Rep. Gino Bulso, and Rep. Bud Hulsey filed three resolutions on Monday to expel their Democratic colleagues. The resolutions on Monday passed in a preliminary vote along party lines, 72-23.

Imagine if this insanity spreads to other Republican-controlled legislatures–and it very likely will, if it’s successful.

Commentary from Margaret Renkl at The New York Times: As Young People March for Their Lives, Tennessee Crushes Dissent and Overrides Democracy.

NASHVILLE — Yesterday the eyes of the country were on the indictment of a former president, along with the all too real possibility that political or public chaos would erupt as a result. Here in Tennessee, we were watching a different kind of chaos unfold as our state government doubled down on its love affair with guns, even in the immediate aftermath of a horrific school shooting. I wish I could tell you that guns were the worst of it.

Last Thursday, in the wake of the shooting, peaceful protesters at the Tennessee State Capitol rallied for gun reform. Activists waved signs in the statehouse gallery, and Representatives Justin Jones, Gloria Johnson and Justin J. Pearson, all Democrats, led them in chants from the House floor during breaks. Between bills, the lawmakers also approached the podium to speak. They did not wait to be formally recognized.

On Monday, statehouse Republicans stripped all three of their committee memberships and deactivated their ID badges. The Democrats “did knowingly and intentionally bring disorder and dishonor to the House of Representatives,” the formal resolutions against them read. Tomorrow, the House will vote on whether to expel the three lawmakers for talking out of turn.

Expulsion is extremely rare in Tennessee history. As the Politico reporter Natalie Allison pointed out on Twitter, the Tennessee House didn’t even vote to expel a Republican legislator who had been accused of sexually assaulting three teenage girls.

The resolutions against Mr. Jones, Ms. Johnson and Mr. Pearson were filed against a backdrop that highlights the absurdity of the actions Republicans have taken against them.

On Monday at 10:13 a.m., one week to the minute after a shooter armed with military-style weapons entered the church-affiliated Covenant School and murdered three children and three adults, more than 7,000 Nashville students staged a walkout to demand gun reform. It was a sight to behold: Vanderbilt University students marching down one street, Belmont University students marching down another, all of them joining a large crowd of high school and college students from around town. They were determined to speak as one voice directly to their government — to the only people with any power to reduce the risks they take just by going to class.

No place in this firearm-besotted country is safe from gun violence, but Tennessee students are at particular risk, and not just in school. They live in a state with some of the nation’s most permissive gun laws, as well as the highest rate of gun theft — and perhaps unsurprisingly, one of the highest rates of gun deaths.

Read the rest at the NYT.

Those are the top stories today, as I see it. I’ll add a few more in the comment thread. What do you think? What other stories have captured your interest?