The public should be on alert for the next Supreme Court ethics controversy when Justice Samuel Alito and Justice Clarence Thomas file their delayed financial disclosures by the final deadline of August 14, 2023.
These reports are unique because Justices Alito and Thomas must decide whether to fully disclose gifts they may never have intended to make public or risk civil and criminal sanctions by certifying incomplete or inaccurate reports.
The background is that both justices have publicly claimed that they did not disclose certain expensive gifts of private plane travel, meals, entertainment, and lodging in the past due to misunderstanding the disclosure rules.
That excuse is no longer available as a result of new guidance issued earlier this year detailing how those gifts are indeed reportable. Consequently, the justices’ reports will raise immediate red flags if their reports do not include more gifts than have been previously disclosed.
Voters, journalists, and lawmakers should look for at least three legally flawed ways the justices may try to avoid full disclosure. The ironic twist is that relying on any of these tactics to avoid disclosure will make the problem worse: the maneuvers would constitute evidence of an illegal attempt to willfully and knowingly circumvent the law.
1. Last Minute Attempt To Pay for the Gifts
One well established and easy to understand exception to the definition of "gift" under the judicial branch rules is “anything for which market value is paid by” the justice.
This exception simply means that if someone gives a justice a painting, but the justice pays them fair market value for it, the justice bought the painting, and it is not a gift. Simple enough, right?
However, the disclosure rules require that the report due next week include all gifts received during the reporting period of 2022. In other words, a gift received in 2022 must be reported and cannot be erased by a payment in 2023.
More importantly, any attempt to repay a gift a year later increases the legal and reputational liability for a justice.
First, if the timing of the payment is after the guidance was issued clarifying that the gifts are reportable, the payment appears to be a willful attempt to not disclose the gift, which violates the law.
Second, questions will arise about the source of any large lump sums the justice used to pay for the gifts.
Finally, any payment will prompt countless inquiries as to whether the amount paid is truly the fair market value for the gift.
As a result, any knee-jerk reaction to throw money at the problem may only buy a bigger problem.
2. Misleading Sources of Gifts
Another clear provision of the judicial gift rules is that justices may accept gifts that are incidental to their outside activities, such as membership to civic or professional organizations. This provision applies to gifts paid for directly by the organization.
The public will be monitoring whether the justices’ reports attempt to identify the source of a gift as a non-profit or other organization, when in fact the gift is tangential or unrelated to the organization and paid for by an individual or separate organization.
The stakes of any justice using this approach are high because media reporting has multiple sources able to confirm the true donor of any gift that is falsely identified as from another source. Again, the cover up is always worse than the original misdeed.
3. Extensive Explanatory Footnotes
Finally, it is common for financial disclosures to include an explanatory footnote for complicated entries that are not clear on their face. However, gift disclosures are not typically the type of entries that require extensive explanation. A gift is a gift.
If justices include long footnotes for any of their disclosures, observers may see this as an indication that the justices are using unnecessary explanations to hide that they are not being completely forthcoming with the gift itself. And the more extensive the footnotes, the more extensive the evidence of calculated attempts to illegally get around the disclosure laws.
The public has the right to know who is paying for the gifts Supreme Court justices receive. If any justice makes attempts to hide the true source of a gift or look for ways to avoid disclosing a gift, they are not only breaking the law, but are also further decreasing trust in our institutions.
That is why it is so important that justices are at least held to the few ethics standards that currently apply to them, and why we must look critically for any attempts to circumvent them.