ProPublica Cherry-Picks ‘Ethics Experts’ on Justice Thomas’s Alleged Disclosure Obligation

ProPublica yesterday published a long article on gifts of luxury trips that Justice Thomas has received from a billionaire friend, Dallas businessman Harlan Crow. The article raises lots of interesting questions, including about what a justice’s obligations to disclose gifts should be. But its claim that has gotten the most attention—that Justice Thomas “appears to have violated” longstanding disclosure obligations by not reporting gifts of airplane travel—rests on a much more contested account of those obligations than ProPublica acknowledges. ProPublica’s three reporters appear to have cherry-picked little-known and unnamed “experts” to present a false and damning clarity on the matter.

Let’s take a closer look:

1. ProPublica asserts that “[e]thics experts said the law clearly requires disclosure for private jet flights.” According to these experts, an exemption in the rules “never applied to transportation, such as private jet flights,” and the “fact” that the exemption didn’t apply to private jet flights “was made explicit in recently updated filing instructions for the judiciary.”

It appears that Kedric Payne of the Campaign Legal Center is one of the “ethics experts” who offered to ProPublica such a crystalline view of the disclosure obligations. I’m not discerning who the other experts might be.

2. On March 29, just eight days before ProPublica published its article, the New York Times published an article titled “Justices Must Disclose Travel and Gifts Under New Rules.” The article begins:

Supreme Court justices will be required to disclose more of their activities, including some free trips, air travel and other types of gifts, according to rules adopted earlier this month.

Under the new rules, justices and other federal judges must report travel by private jet, as well as stays at commercial properties, such as hotels, resorts or hunting lodges.

According to the article, leading legal ethicist Stephen Gillers described the new rules as a major change—a “giant step” away from rules that were “little more than a joke” and that “were very lax and tolerated circumvention”:

“In my world of transparency and judicial ethics, what we had until now was little more than a joke,” said Stephen Gillers, a professor emeritus at the New York University School of Law who specializes in legal ethics. “The rules were very lax and tolerated circumvention, and now we’ve taken a giant step away from that.”

3. The Washington Post published a similar article on March 28. According to the article, the new rules “clarify that judges must report travel by private jet.” The previous rules “had not clearly defined the exemption for gifts considered ‘personal hospitality,’” and the “revised rules address that ambiguity.” The article quotes Gabe Roth, executive director of the liberal group Fix the Court, as acknowledging “the very clear loopholes in the judicial gift and travel reporting rules” that had existed under the old rules and that the new rules would “restrict.”

4. An NBC News article yesterday about the ProPublica story begins:

For many years, a loophole that allowed Supreme Court justices to avoid disclosing certain gifts — including travel — funded by their friends was apparently big enough to fly a private jet through.

The federal judiciary just last month announced in a letter to lawmakers that it had tightened its rules for what judges and justices need to include in annual financial disclosure statements.

The article quotes Professor Gillers:

“In my view, before the recent amendments, the situation was sufficiently vague to give Thomas a basis to claim that reporting was not required,” said Stephen Gillers, an expert on judicial ethics at New York University School of Law. “I think that such an interpretation would be a stretch … but the interpretation is plausible.” [Ellipsis in original.]

5. In sum, the claim by ProPublica’s “ethics experts” that the longstanding rules “clearly require[d] disclosure for private jet flights” and that the recent revision to the rules merely “made explicit” what was already clear is hotly contested.

Professor Gillers is probably the most widely cited legal-ethics expert of our age. That doesn’t mean that he’s always right, of course. But it does mean that any journalist exploring what legal-ethics rules mean would be interested in learning his views. And it’s especially strange that ProPublica’s reporters wouldn’t even acknowledge his conflicting account of the pre-existing disclosure obligations set forth in the New York Times article.

It’s possible, I suppose, that none of ProPublica’s three reporters ran across the New York Times article or the Washington Post article on the very topic they were writing about. But it sure seems that they sought out the ethics advice they wanted.