Weinerism Lives!

by Ed Whelan

Last week twenty House Democrats sent a letter to the Judicial Conference of the United States in which they asserted that Justice Thomas’s “failure to disclose his wife’s income for two decades was willful.” Their letter requested that the Judicial Conference refer the matter to the Department of Justice for possible prosecution.

When the now-resigned and disgraced Anthony Weiner led a similar insipid charge against Thomas in February, at least he had the excuse that he was too busy taking pictures of his own crotch to think straight. What excuse do these twenty House Democrats now have?

What’s striking about the Democrats’ assertion that Thomas “fail[ed] to disclose his wife’s income for two decades” is that they make the same inadvertent mistake that Thomas apparently did. Specifically, they assume that Thomas had the same disclosure obligation over this time regarding his wife’s employment. But for the first half of that period, Mrs. Thomas was a federal employee, and the Ethics in Government Act (the source of the financial-disclosure requirements) specifically excludes from the filer’s reporting obligation any duty to disclose a spouse’s “current employment by the United States Government.” (Read section 102(e)(1) together with 102(a)(1).) [Update (around 7 p.m.): On further consideration, I’m much less certain that the Act must be read this way. (I dimly have in mind that the reading I’m offering comports with how it was applied while I was at DOJ, but I may be mistaken.) The larger points in the rest of this post would, in any event, be unaffected.]

I’ll also note that Thomas was never obligated “to disclose his wife’s income.” Once Mrs. Thomas was employed by an employer other than the federal government, he should have listed that employer. But whereas the disclosure form calls for the filer to list his “gross income” by source and type, it doesn’t include the “gross income” line for the filer’s spouse, and it instead states “Dollar amount not required except for honoraria.” See, for example, page two of this financial disclosure report by Justice Breyer, where he properly doesn’t set forth the amount of his wife’s salary from her employer.

Justice Thomas has acknowledged that he incorrectly filled out his financial-disclosure form for certain years by failing to note a fact that was already public knowledge—that Mrs. Thomas was employed by the Heritage Foundation. There is zero reason to suspect that his nondisclosure of a publicly known fact was willful. It’s far more likely that Thomas, rather than re-reading the 77 pages of instruction that accompany the financial-disclosure form, made the inadvertent mistake, when Mrs. Thomas moved to Heritage, of using his previous year’s form as a model and thus overlooked the fact that he had a new obligation to disclose the source of her employment.

Finally, as the Washington Times points out in an excellent editorial, the House Democrats who fling their reckless hyperbole against Justice Thomas have plenty of reason to be more careful. Among other things:

In fact, at least 14 of the 20 Democrats attacking Justice Thomas had to file amendments to their own ethics documents because of various errors or omissions. For example, Illinois Rep. Jesse Jackson Jr. had to correct his filings from 2004 through 2006 because, he explained in January 2009, “due to a clerical oversight my previous financial disclosure statements inadvertently omitted information about my wife’s outside income.” So did Oregon Rep. Earl Blumenauer, who failed to mention his wife’s income from 2006 through 2010. Michigan Rep. John Conyers Jr. also made a mistake in listing his wife’s assets in his 2009 disclosure.

Monica Conyers, the Detroit congressman’s wife, is serving a 37-month sentence for taking bribes in exchange for her votes on Motown’s city council.

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