[Even by Thomas’ own permissive interpretation, the justice’s
recently revealed travel to Palm Springs and the Bohemian Grove appear
to violate the disclosure law, experts explained.]
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IT’S NOT PERSONAL: WHY CLARENCE THOMAS’ TRIP TO THE KOCH SUMMIT
UNDERMINES HIS ETHICS DEFENSE  
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Justin Elliott, Joshua Kaplan and Alex Mierjeski
October 5, 2023
ProPublica
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_ Even by Thomas’ own permissive interpretation, the justice’s
recently revealed travel to Palm Springs and the Bohemian Grove appear
to violate the disclosure law, experts explained. _

Justice Clarence Thomas, by Cknight70 (CC BY 2.0)

 

For months, Supreme Court Justice Clarence Thomas and his allies have
defended Thomas’ practice of not disclosing free luxury travel
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trips fell under a carve-out to the federal disclosure law for
government officials.

But by not publicly reporting his trips to the Bohemian Grove
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and to a 2018 Koch network event, Thomas appears to have violated the
disclosure law, even by his own permissive interpretation of it,
ethics law experts said. The details of the trips, which ProPublica
first reported last month, could prove important evidence in any
formal investigation of Thomas’ conduct.

Thomas’ defense has centered on what’s known as the personal
hospitality exemption, part of a federal law passed after Watergate
that requires Supreme Court justices and many other officials to
publicly report most gifts.

Under the exemption, gifts of “food, lodging, or entertainment
received as personal hospitality
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be disclosed. The law provides a technical definition of “personal
hospitality [[link removed]].” It
only applies to gifts received from someone at that person’s home or
“on property or facilities” that they or their family own. A judge
would generally not need to disclose a weekend at a friend’s house;
they would need to report if someone paid for them to stay at the
Ritz-Carlton.

Numerous ethics law experts have said
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that gifts of transportation, such as private jet flights, must be
disclosed under the law because they are not “food, lodging, or
entertainment.”

Thomas has laid out a different view of the disclosure requirements.
In his financial disclosure released in late August
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Thomas asserted that the personal hospitality exemption extended to
transportation. Justice Samuel Alito has made the same argument
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in an op-ed where he elaborated on his reasoning: private jets would
count as “facilities” under the law’s definition of personal
hospitality. In this view of the disclosure requirements, a key
question would be whether the person providing a private jet flight
actually owned the jet. So, for example, Thomas would not need to
report flights on his friend Harlan Crow’s private plane because
Crow owns it.

Thomas and Alito’s position is incorrect, many experts said, because
it simply ignores the statute’s language: that the personal
hospitality exemption only applies to food, lodging, or entertainment.

But there’s an additional reason the newly revealed trips should
have been disclosed.

ProPublica recently reported
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that in 2018, Thomas traveled on a Gulfstream G200 private jet to Palm
Springs, California, to attend a dinner at the Koch political
network’s donor summit. He didn’t hitch a ride on a jet owned by a
friend. Instead, he flew there on a chartered plane: a jet available
through an Uber-like service that lets wealthy individuals rent other
people’s planes. The owner of the jet at the time, Connecticut real
estate developer John Fareri, confirmed to ProPublica that he didn’t
provide the plane to Thomas and that the Palm Springs flight was a
charter flight. That means someone else — not the owner — paid.

A Koch network spokesperson said the network didn’t pay for the
flights. Because Thomas didn’t disclose the trip, it’s still not
clear who chartered the plane. Jet charter companies told ProPublica
the flights could have cost more than $75,000.

Experts told ProPublica they couldn’t think of an argument that
would justify not disclosing the Palm Springs trip. “Even using
Thomas’ flawed logic about the personal hospitality exception,
there’s no way this chartered flight fits into that exception,”
said Kedric Payne, a former deputy chief counsel at Congress’ ethics
office.

Thomas and his attorney did not respond to questions about why he
didn’t disclose the flight or if he paid for it himself. After the
Palm Springs donor event, the plane flew to an airport outside Denver,
where Thomas appeared at a ceremony honoring his former clerk, then
back to northern Virginia, where Thomas lives.

Thomas’ undisclosed trips to the Bohemian Grove present a similar
issue. As ProPublica reported last month, Thomas has for 25 years been
a regular at the Grove, an all-men’s retreat held on a 2,700-acre
property in California. Thomas has been hosted by Crow, who is a
member of the secretive club, and stayed at a lodge there called
Midway. Members typically must pay thousands of dollars to bring a
guest, according to a Grove guest application form
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obtained by ProPublica and interviews with members.

Crow does not own the Grove nor does he own the lodge where Thomas has
stayed. Experts said in these instances again, even by Thomas’ own
characterization of the rules, he appears to have violated the law by
not disclosing the trips.

“It makes a mockery of the statute,” said Richard Painter, who
served as the chief ethics lawyer for the George W. Bush White House.
Painter said that if charter flights and trips to Grove don’t need
to be disclosed, “you could call everything personal hospitality.
Broadway show tickets. A first-class ticket on Delta Air Lines. A trip
on the Queen Mary.”

Following ProPublica’s reporting on Thomas’ failure to disclose
gifts earlier this year, members of Congress sent a complaint to the
Judicial Conference, the arm of the judiciary responsible for
implementing the disclosure law. In April, the Judicial Conference
said it had referred the matter to a committee of judges responsible
for reviewing such allegations.

The law says that if there is “reasonable cause”
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“willfully” failed to disclose information they were required to,
the conference should refer the matter to the U.S. attorney general,
who can pursue penalties
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unprecedented. As of May, the Judicial Conference said it had never
made such a referral. The committee’s process appears to be ongoing.

In his filing in August, Thomas said that his view of the disclosure
rules was based in part on conversations he had with staff at the
Judicial Conference. Thomas did not respond to questions about the
advice he received. A judiciary spokesperson declined to comment on
whether it was ever the Judicial Conference’s position that gifts of
private jet flights didn’t need to be reported.

This March, the judiciary revised its regulations to make explicit
that private jet travel must be disclosed because transportation is
not covered by the personal hospitality exemption. Experts said the
update merely clarified what was always the case. (ProPublica reviewed
other federal judges’ financial disclosure filings and found at
least six recent examples
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of judges disclosing gifts of private jet travel before the
regulations were updated.)

More than a decade ago, Thomas’ disclosure practices came under
scrutiny following research by a watchdog group and a story in The New
York Times about his relationship with Crow
[[link removed]].
Democratic lawmakers wrote to the Judicial Conference in 2011
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saying that Thomas had failed to report the sources of his wife’s
income and that he “may” have also received free private jet trips
without reporting them.

What happened after that remains opaque.

In a four-sentence letter
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the following year, the secretary to the Judicial Conference said that
the complaint had been reviewed. “Nothing has been presented,” he
wrote, “to support a determination” that Thomas improperly failed
to report gifts of travel. The letter did not detail what steps the
conference took, the reasoning behind its decision or what information
it had been presented with.

At the time, nothing in the public record had established that Thomas
had ever accepted undisclosed private jet flights. But Thomas’
attorney Elliot Berke has cited the 2012 letter
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as vindication of Thomas’ practices. “The Judicial Conference
issued a letter confirming that Justice Thomas had not improperly
failed to disclose information concerning his travel,” Berke wrote.

ProPublica asked the Judicial Conference for details on the 2012
episode, including whether the committee conducted an investigation
and an explanation of its ultimate conclusion: Did it determine that
private jet flights need not be reported? Or did it determine that it
wasn’t clear if Thomas had actually accepted such a gift?

A Judicial Conference spokesperson declined to comment.

* Clarence Thomas
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* David Koch
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* Supreme Court
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* Money in Politics
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