Senators seek criminal investigation into Supreme Court Justice Clarence Thomas

Two Democratic senators are seeking a criminal investigation into Supreme Court Justice Clarence Thomas, focusing on gifts and benefits received from wealthy benefactors.

This come as a significant escalation in efforts to address various controversies related to Thomas and the court, and could mark an unprecedented probe.

U.S. Senators Sheldon Whitehouse (D-RI) and Ron Wyden (D-OR) sent a letter to Attorney General Merrick Garland last week requesting the appointment of a Special Counsel to investigate potential violations of ethics, false statements and tax laws by Thomas and the benefactors who have supplied him with undisclosed gifts.

Whitehouse and Wyden wrote in their letter that the full pattern of Justice Thomas' omissions of outside income and luxury gifts from his legally required financial disclosures warrant a criminal investigation by the Department of Justice.

"What they're saying is that Justice Thomas did not disclose gifts and other things he received from wealthy donors, from people who were supportive of him, that he was required to disclose in both his ethics filings with the federal courts and perhaps even in his taxes with the IRS," Jeremy Fogle, law professor and director of the Berkeley Judicial Institute at UC Berkeley, told KCBS Radio.

Thomas has served on the court since Oct. 23, 1991, and throughout his tenure he has been the head of several scandals and criticisms from Democrats.

Among the concerns raised include allegations that he failed to properly disclose gifts from billionaire benefactors. These gifts include multiple instances of free private jet travel; yacht travel; country club membership; luxury sports tickets; lodging; tuition for Justice Thomas’s grandnephew; and real estate transactions, home renovations, and free rent for Justice Thomas's mother, according to the senators. They also want to determine whether Thomas violated federal ethics and tax laws by failing to disclose more than $267,000 in forgiven debt on a loan he used to purchase a luxury motorcoach.

"Part of what the senators are saying is that there were things that Justice Thomas was required to report on his ethics reports every year that he didn't and that the failure to report was willful and therefore there might be some criminal activity there. And then the other would go to taxes," said Fogle. "But the key to both of them, of course, is that it has to be willful and intentional. He has to know that he has a duty to report these things and he was hiding them. That would make it, instead of being a sort of a civil violation, it would be a criminal one that could be prosecuted."

The Supreme Court has never actually acknowledged that the Ethics in Government Act, which applies to all of the other federal judges in the country, applies to the Supreme Court -- though they say that they comply with it voluntarily, Fogel explained. The act mandates the  public disclosure of financial and employment history of public officials as well as their immediate families.

At the end of the day, the attorney general has to make the decision that there's something to investigate and to prosecute.

"There's a threshold. You can't just kind of go out and say, 'Well, I'm going to appoint a special counsel to see if there's something there.' There has to be some showing that there's enough indicators of criminal activity that it justifies the appointment of a special counsel or it justifies a criminal investigation of any kind," said Fogel.

Seeing as it's a highly charged political environment with an election year and some very controversial cases just decided by the Supreme Court, Fogel said Garland moving forward with an investigation is "unlikely."

"I think the senators feel very strongly. They feel like the whole story has not come out," he added.

In a joint statement , Whitehouse and Wyden said they did not make the request lightly.

"The evidence assembled thus far plainly suggests that Justice Thomas has committed numerous willful violations of federal ethics and false-statement laws and raises significant questions about whether he and his wealthy benefactors have complied with their federal tax obligations," the senators said. "Presented with opportunities to resolve questions about his conduct, Justice Thomas has maintained a suspicious silence."