ProPublica has at least three reporters working the Clarence Thomas beat—Justin Elliott, Joshua Kaplan and Alex Mierjeski. Their
story, published last Thursday, is titled “Billionaire Harlan CrowBought Property From Clarence Thomas. The Justice Didn’t Disclose the Deal.” The troika write that the lack of disclosure “appears to be a violation of the law, four ethics law experts told ProPublica.” That statement is equivocal because it’s a legal theory based on incomplete facts. Justice Thomas didn’t respond to ProPublica’s questions or to mine.
Some facts are known and undisputed. Mr. Crow, a Dallas developer and friend of the justice, confirmed in a written
statement to ProPublica that Savannah Historic Development LLC, a company he established, bought “the childhood home of Justice Thomas,” which Mr. Crow plans to convert into a museum “telling the story of our nation’s second black Supreme Court Justice.” Public documents show that the company paid Anderson’s heirs a total of $133,363 for the Savannah house and two adjacent empty lots. According to ProPublica, Justice Thomas’s mother, 94-year-old Leola Williams, lived in the house at least until 2020 and possibly still does.
Assuming Justice Thomas received one-third of the sale price (or any amount more than $1,000), the text of the federal financial-disclosure
statutewould require him to have reported the transaction in Part VII (“Investments and Trusts”) of his annual AO-10
form for 2014. He didn’t do so and may need to file an amended form.
But my review of Justice Thomas’s disclosures and other documents convinces me that any failure to disclose was an honest mistake. On all other matters involving his scanty real-estate inheritance, he followed the
Filing Instructions for Judicial Officers and Employees, prepared by the Committee on Financial Disclosures of the Administrative Office of the U.S. Courts. Those instructions don’t make clear the statutory obligation to disclose the 2014 transaction.
Further, the ProPublica troika made a sloppy reporting error, the effect of which is to cast Justice Thomas’s disclosures in a falsely unfavorable light—to make them look shambolic or perhaps even dishonest when in fact they followed the filing instructions without fail.
The reporters’ error involves a confusion about what Justice Thomas
did disclose. “By the early 2000s,” ProPublica reports, “he had stopped listing specific addresses of property he owned in his disclosures. But he continued to report holding a one-third interest in what he described as ‘rental property at ## 1, 2, & 3’ in Savannah.” It’s worth noting—ProPublica doesn’t—that the filing instructions (on page 32) prescribe disclosing rental properties in precisely this manner.
The story continues: “Two of the houses were torn down around 2010, according to property records and a footnote in Thomas’ annual disclosure archived by
Free Law Project.” That footnote in Justice Thomas’s
2010 disclosure states in full: “Part VII, Line 2 - Two of the Georgia rental properties have been torn down. The only remaining property is an old house in Liberty County.”
Liberty County is where our journey began, but the ProPublica troika somehow missed it on the map. Their story leads the reader to think that the “remaining property” was the Savannah house where Justice Thomas’s mother lived. A Friday
letter from the Center for Responsibility and Ethics in Washington—co-signed by Virginia Canter, the first of ProPublica’s “four ethics experts”—expressly says so and accuses Justice Thomas of deceptively disclosing (rather than failing to disclose) the property’s disposition.
The footnote makes clear that this is wrong. There’s a fourth property. Justice Thomas’s
2009 disclosure listed three rental properties in “Sav., GA.” Beginning in 2010, he listed only one, in “Liberty Cty, GA.” Savannah is in Chatham County, not Liberty. But Liberty County is in the Savannah area, roughly a 45-minute drive from the city. For someone living hundreds of miles away, it would have been reasonable to describe the three rental properties collectively as being “in Savannah.”
That implies that Justice Thomas never disclosed his interest in the Savannah house where his mother lived. But he didn’t need to. “Information pertaining to a personal residence is exempted from reporting, unless the property generates rental income,” the filing instructions say on page 33. Nor was there any requirement to disclose the ownership of the other two Savannah properties after the houses were demolished. Who wants to rent an empty lot in Savannah?