How Clarence Thomas Could Legalize Corruption
Amid a scandal, the Supreme Court justice could get exactly what he wants.
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America’s criminal justice system rarely holds billionaires and political figures accountable for anything. If that trend holds in the case of Clarence Thomas, a failure to hold him accountable after revelations of flagrant corruption would effectively legalize what he did.
But here’s a thought experiment: Imagine that the scandal finally changed that do-nothing paradigm. Imagine a prosecutor citing federal disclosure laws to prosecute Thomas for not reporting gifts he received from Texas billionaire Harlan Crow, who is linked to groups that seek to influence the Supreme Court.
What might happen then?
The answer reveals just how rotted the system is, because Thomas could actually get what he’s long demanded: A precedent-setting ruling fully legalizing the kind of corruption he engaged in.
As The Lever reports, Thomas has for years articulated an ideology even more extreme than the one baked into the 2010 Citizens United ruling that pretends corporate spending in elections does not corrupt public officials. In that case, he argued that all political spending disclosure laws are an unconstitutional abridgment of billionaires’ alleged right to spend anonymously on politics.
“This court should invalidate mandatory disclosure and reporting requirements,” Thomas wrote in his concurring opinion, asserting that the majority opinion in the case didn’t go far enough.
So now return to the imaginary world where Thomas gets prosecuted for violating disclosure laws. In this scenario, his Citizens United screed might be the foundation for his legal defense. He might stipulate that he did in fact break disclosure law, but then argue that he should be found not guilty because such laws are unconstitutional.
His case might then make it all the way up to the Supreme Court, which would be in a position to side with him, enshrine his doctrine as a new precedent, thereby invalidating the disclosure law in question — and all political spending disclosure laws in the country.
If you think this legal strategy seems far fetched, think again: Thomas would be reprising a tactic most recently employed by Sen. Ted Cruz.
In 2018, the Texas Republican deliberately violated an anti-corruption law restricting the amount of money candidates can lend themselves and then get paid back (with interest) by their campaign donors after the election. The point of the law was to prevent lawmakers from trading legislative favors for campaign donations that end up personally remunerating the politician via loan repayment.
When the FEC tried to enforce that statute, Cruz sued the agency in an attempt to secure a court ruling invalidating the underlying law - which is exactly what the Supreme Court gave him last year.
Again: In the case of Thomas, as flagrant as his behavior has been, it is difficult to imagine him being prosecuted in a country whose justice system didn’t prosecute anyone involved in Iraq War lies, the financial crisis, or so many other high crimes of the last 20 years.
But the fact that a prosecution could further legalize graft is a reminder of how rigged and rotted the top of the federal judiciary now is.
It is also a reminder of why Democrats still refusing to seriously push court expansion is a total surrender to the corruption overtaking America.
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