Supreme Court Justice Clarence Thomas was referred to the Justice Department by a pair of senators for a special counsel investigation, following extensive reporting about his improper acceptance of and failure to disclose gifts, luxury accommodations, and other favors from right-wing billionaires with business before the court.
But legal experts told Newsweek on Thursday that this is unlikely to go anywhere.
The problem, they explained, is that Attorney General Merrick Garland just won't think it's worth the risk.
Sens. Sheldon Whitehouse (D-RI) and Ron Wyden (D-OR) "provide a strong case on the facts for opening a criminal investigation of Justice Thomas," Fordam Law School professor and ethics law expert Bruce Green explained to Newsweek. "And, of course, allegations of criminal and ethical misconduct by a Justice should be taken seriously, because they erode the legitimacy of the Supreme Court." However, he added, Garland would reasonably fear such a probe "would undermine public respect for the legitimacy of the Department of Justice."
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"The Attorney General is unlikely to risk the legitimacy of his own institution to protect the legitimacy of the Supreme Court," Green added. "He will leave it to Chief Justice Roberts and the other justices to keep their house in order."
Indiana University law professor Charles Gardner Geyh agreed, saying that "This situation is complicated by the fact that there are good reasons to pursue an investigation that coincide with political ones."
This already comes at a time when Republicans have lobbed loud partisan attacks on the Justice Department, following special counsel Jack Smith's criminal indictments against former President Donald Trump for election conspiracy and the unauthorized concealment of classified national defense information. Both cases have been delayed until after the election.
The Supreme Court, amid a firestorm of bad press, recently introduced an updated code of judicial ethics, but this code still has no method of enforcement other than the justices policing themselves. Roberts has refused multiple requests by Senate Democrats to testify on the controversies surrounding gifts to justices and other issues like Justice Samuel Alito's flag controversy.
