There is nothing stopping Senate Dems from subpoenaing Clarence Thomas immediately: analyst

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14 April 2023

Legal critics pillory Justice Clarence Thomas for ‘speaking out against something he is actively doing’

Reacting to multiple reports from ProPublica that Supreme Court Justice Clarence Thomas and his wife have been living the good life paid for by their "friend," conservative Texas billionaire Harlan Crow, Senate Judiciary Chair Dick Durbin (D-IL) vowed his committee “will act."

As The New Republic's Michael Tomasky notes, Durbin first called on Chief Justice John Roberts to investigate. Then, the next day, also implored Attorney General Merrick Garland to open an investigation.

But, as Tomasky points out, if Durbin is really serious about grilling Thomas over the gifts and the trips and the purchase by Crow of property owned by him in Georgia, the Illinois Democrat need only look in the mirror to find the guy who can do it.

Writing, "A major donor who’d been giving Clarence and Ginni Thomas lavish gifts for years finally went so far as to purchase a house he owned (Thomas shared ownership with his brother and mother). Thomas obviously made money from the sale. He didn’t disclose it. Obviously, the intent of the law is for the public to know about such matters. Thomas decided the public had a right to know about his stained-glass medallion but not this house," Tomasky argued Democrats need to take matters into their own hands.

In particular, he singled out Durbin.

"Stop tossing the football around. You have a gavel, and you have subpoena power. Subpoena Clarence Thomas. Next week," he implored the Senate Judiciary Committee chair.

As to the question of whether a sitting Supreme Court Justice can be subpoenaed, he wrote, "Yes. Congress can subpoena anybody it wants to."

Tomasky then linked to an opinion by Georgetown Law Professor Josh Chaffetz, who wrote: "Judges have no explicit protection from being questioned in Congress—in contrast to members of Congress, who are, as we shall see in the next chapter, privileged against being questioned 'in any other Place' for their official activity—so it is only by inducing an overriding, free-standing constitutional principle of judicial independence that one could argue that they are categorically immune from congressional subpoena. But why should we make such an inductive step for judges, especially given the other, explicit independence-protecting measures?"

To which Tomasky added, "No careers are being destroyed. All we have here is a man, one man, one very corrupt man, who is supposed to be one of this nation’s nine most preeminent lawgivers but who clearly thinks he is above the law," before posing the question: "Senator Durbin: What are you prepared to do?"

You can read his whole piece here.

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