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According to reporting by The Post’s Emma Brown, Shawn Boburg and Jonathan O’Connell, Conway’s firm paid Ginni Thomas’s firm, Liberty Consulting, $80,000 from June 2011 to June 2012 and was slated to pay $20,000 more by the end of 2012.
This transfer does not have the aura of an ordinary business transaction. There’s nothing wrong with the Judicial Education Project hiring a pollster and nothing wrong with Conway’s firm, the Polling Company, enlisting Thomas’s consulting firm as a subcontractor. Moreover, Ginni Thomas, who was a conservative activist before she met her husband, Clarence Thomas, should be able to have her own career, within the bounds of appropriateness given her husband’s position as a Supreme Court justice.
But why is Leo directing how much and when Conway will “give” to Ginni Thomas, a transaction that would ordinarily be between the consultant and the subcontractor? Usually, invoices are submitted and work substantiated before money is paid, rather than the other way around. And, as the Post story points out, Leo, a powerful Washington operative who has overseen a generation-long project to fill the federal judiciary with conservative jurists, didn’t have any official role at the Judicial Education Project; its president at the time, Neil Corkery, certified on the organization’s tax filing that no one other than officers or key employees had control over its operations.
What work did Ginni Thomas actually do for this rather significant sum? To be blunt, was this just a way of Leo funneling money to the Thomases — not just any money, but tax-deductible donations that must be used for charitable purposes? Did Leo use Conway’s firm as a cutout to avoid a direct linkage to the charitable organization? Were there other such arrangements in which Leo sent funds to Ginni Thomas?
And why the mania for secrecy? “Knowing how disrespectful, malicious and gossipy people can be, I have always tried to protect the privacy of Justice Thomas and Ginni,” Leo told The Post. That’s one explanation. But these were internal records — who’s gossiping about them? An alternative explanation: Leo didn’t want the Judicial Education Project, if the Internal Revenue Service or others inquired, connected to Ginni Thomas.
Then there are the questions about direct overlap with the business of the court. In December 2012, the same year that Ginni Thomas was receiving money through the Judicial Education Project, the group filed a friend-of-the-court brief in Shelby County v. Holder, which would turn out to be a landmark case eviscerating the Voting Rights Act. If his wife received $100,000 from a group with an interest in the outcome of the case, should Clarence Thomas have recused himself from the decision?
That’s a complex issue on which serious experts quoted by The Post differ. The federal recusal statute requires judges to step aside from any case in which their “impartiality might reasonably be questioned.” There’s little risk here that Thomas was going to be actually influenced by payments to his wife; he was going to vote to cut back voting rights in any event, as he had previously. Of course, that shouldn’t end the inquiry. The question is whether the payments would raise doubts about the justice’s impartiality.
All this underscores the inadequacy of existing financial disclosure rules. In this situation, unlike others involving the justice, the issue isn’t whether he followed the letter or spirit of the disclosure law — it’s whether the law needs to be revamped. The rules require reporting only of the source (not the amount) of income — in Ginni Thomas’s case, Liberty Consulting — not the clients of the consulting firm. There’s no way of knowing that any money came to the Thomases from the Judicial Education Project via the Polling Company.
There has been a lot of reporting over the years about Leo’s sprawling financial empire, but the Post story offers a glimpse into its long-secretive inner workings. The view — “no mention of Ginni, of course” — is not an attractive one.
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