22 December 22
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When you’re a justice, they let you do it.
That’s why the criminal referrals lobbed at Trump this week from the Jan. 6 committee are heartening and tangible. The committee’s decision to state that Trump and his most lawless supporters have committed actual crimes laid down a powerful historical marker and put important pressure on the Justice Department for future accountability.
And yet, there is something that feels entirely unsatisfying about celebrating this as a landmark win. Two years after we watched the crime happen in plain sight, and the criminals fêted and enriched, we now see criminal charges humbly suggested, for a handful of people?
It’s OK to be frustrated at the limits of the executive summary of the committee’s final report. The report itself remains forthcoming. But just for starters, Monday’s release failed to take seriously the spectacular failures of law enforcement and intelligence agencies; the limited efficacy of ethics referrals for GOP House members who failed to comply with subpoenas; and the culpability of so very many Republicans who have aided and abetted Trump’s big lie for two straight years.
For its own obvious reasons, the committee opted to focus its gaze on Donald Trump and the weirdest weirdos in his orbit, thus sparing some of the worst denialists, liars, and insurrectionists in the GOP from the prospect of serious accountability. But Trump himself was already slipping from “hot” to “not” at meteoric speeds, which is perhaps why the focus on the former (or—as the panel sordidly referred to him Monday—the “ex”) president seems so painfully narrow.
It’s at least possible to surmise that the biggest winners after the committee finished its superb work would be Ron DeSantis, the Murdochs, Liz Cheney, and all those advocating that the GOP dump Donald in favor of literally anyone who can push wildly conservative outcomes without the added peril of his bottomless unhinged-ness. By that token, Monday was a very good day for the GOP, as measured by the opening of yet another offramp for anyone still in search of an offramp.
Consider that Ginni Thomas was nowhere mentioned in the executive summary—nor, aside from an opinion citation, was her husband, the sitting Supreme Court justice who will not recuse himself from cases that involve the Jan. 6 attempted insurrection in which his wife had both participated in the efforts and a vested interest in the outcome. Given the committee’s deference to the Thomases throughout its hearings, no surprises there. But it is still disappointing, for those of us who bought into the idea that the committee could restore some real idea of justice across government.
Instead, no matter what they may tell you about the rule of law and the need for consequences and accountability, absolutely nobody in the GOP as it is currently constituted has any interest in stopping the goose that has laid the conservative legal establishment’s golden egg. Love him or hate him, Thomas has been the single most effective jurist in modern history, and even those conservatives who deplore Trump’s incitement and violence and threats will gleefully turn a blind eye to Thomas’ ethical lapses if it means securing enduring wins on abortion, guns, massive deregulation, and ascendant corporate power. Virtually nobody who is winning at the Supreme Court in a decades-long conservative legal project aimed at dismantling environmental protections, subverting minority voting rights, and imposing theocratic supremacy is going to take seriously the myriad ethical conflicts and structural failings that plague the current court. Better to keep pretending that Donald Trump is the problem than concede that the problem is actually that both Trump and the Thomases operate as if the law is for the little people, and the law lets them.
Clarence and Ginni Thomas were ultimately untouchable for the Jan. 6 investigators for the same reason they are untouchable for purposes of Supreme Court ethics reform: When you’re a justice, they let you do it. And when you are delivering long-sought victories, even ethical Never Trumpers like Liz Cheney will let you do whatever it takes to deliver the goods.
I’ve been struck that in recent reporting on ethical lapses at the high court, conservative legal enthusiasts have begun to advance the claim that there is no need for binding ethics rules because conservative triumphs are so plainly and self-evidently correct that there can be no other outcome. Here’s a version of that argument applied to Leonard Leo of the Federalist Society assisting Kellyanne Conway in selling her polling business while she was lobbying the Trump White House in its judicial selections: “It seems bizarre to think that any possible lobbying by Kellyanne Conway would have added to the force of [the court’s] commitment or to the influence that Mitch McConnell and Don McGahn had already wielded,” said Ed Whelan, a former clerk to Antonin Scalia. And here’s Mark Paoletta, the former Clarence Thomas clerk who worked on Thomas’ Senate confirmation and who now represents Ginni Thomas in Jan. 6 matters testifying in opposition to Supreme Court ethics reform earlier this month: His argument was that a campaign in which big donors forked over cash to the Supreme Court Historical Society in order to put pressure on justices to overturn Roe v. Wade was not an ethics problem at all. Why was that? Because pushing Alito, Thomas, or Scalia rightward was laughable, you see, since their opposition to Roe was already known. They’re so conservative, it’s not possible to corrupt them with money.
Wait. So the justices who swore at their confirmation hearings that Roe was binding precedent were in truth so in the tank for overturning Roe that no amount of pressure to do so would have made a difference? Since everyone knew that overturning Roe was why they were appointed? Got it. No wonder Supreme Court ethics reform is a dumb idea. If a code of ethical conduct isn’t necessary because conservative legal thinkers are impervious to influence and bribes from those with whom they are in lockstep, there’s no need for any limits on who they party with or travel with or accept gifts from. Of course at that point, we should probably stop characterizing the place as a “court.”
In thinking about the ethical emptiness that’s swallowing all three branches of our federal government, I’ve been revisiting the speech that Rep. Gerald Ford, then House minority leader and future president of the United States, gave when he attempted unsuccessfully to impeach Justice William O. Douglas, in 1970. While Ford’s efforts to impeach the wild man that was Douglas failed, and are largely derided as motivated by political partisanship and score settling, the text of his speech is illuminating.
Douglas, to be sure, was a piece of work. According to one book review by Jeffrey Rosen:
His neglected children found him “scary” and noted that he spoke to them only when “press photographers wanted a picture.” They also resented his treatment of their mother, his first wife, whom he threw over after 28 years of marriage for a series of younger women. He left his third wife for a high school student who had asked him to sponsor her senior thesis, and then divorced her after 24 months for a college student whom he had met while she was a waitress in a cocktail lounge. He kept a room at the University Club, to which his messenger would drive Supreme Court secretaries who caught his fancy. In his sixties, he routinely invited flight attendants to visit him at the Court, where he would lunge at them in his chambers.
Most of Ford’s speech was devoted to the proposition that Justice Douglas was a dirty, dirty boy, who wrote for dirty, dirty magazines and dabbled in some kind of “international gambling fraternity,” and palled around with dubious sorts of former casino owners and “young hothead revolutionaries.” It’s mostly very silly. But it’s pretty striking that in 1970, a purely partisan witch hunt against a liberal jurist for alleged pornographic violations was taken more seriously by Congress as an ethics scandal than one involving a Supreme Court justice whose wife was involved with an attempt to subvert a presidential election.
Republicans, for all their past sins, did in relatively recent history say that there were lines that people in power could not cross. As a result of the conduct of Ford’s immediate White House predecessor, many voted to say that orchestrating and covering up the Watergate break-in crossed a line. With Ford’s crusade against Douglas, a justice’s alleged sexual impropriety had crossed a line. Today’s GOP—be it at the Supreme Court or in Congress or in the White House—proved once again this week (and in the months and years preceding it) that there are no real lines between its dreams and its victories. Judicial corruption, a violent coup attempt—whatever. For every working Republican power player, including the two Republican members of the Jan. 6 Committee, accountability stops at the courthouse door.
Pay very close attention as you read the final report, to where the bipartisanship around the Jan. 6 Committee recommendation begins and ends. Liz Cheney and Adam Kinzinger have done yeoman’s work to shore up the rule of law and accountability for Donald Trump and the worst of his confederates. But the work will also provide a pretty flawless map to which legal and ethical lapses are disqualifying and which are tacitly encouraged. One branch of government is checked and the other is given a pass. It’s clear that whatever part law enforcement, House Republicans, MAGA election deniers still in office, and particularly any Supreme Court justice or their spouse may have played in an attack on the republic in 2021 will be forgiven and forgotten. They’re still all on one team, and—law and ethics notwithstanding—that team is all in on winning the fights that really matter.
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