While Harlan Crow and Senate Democrats continue to exchange letters regarding his improper relationship with Justice Clarence Thomas, Texas Republicans are taking a hardline against corruption in their state. You read that right.
Proceeding from the first principle that those most responsible for enforcing the laws should be most beholden to it, Texas House Republicans recently took the extraordinary step of impeaching Texas Attorney General Ken Paxton (R). This is the first time that the Legislature has ever impeached Texas’s top cop. But neither novelty nor “separation of powers” stopped the Texas House from carrying out a first-of-its-kind investigation into Paxton or impeaching given what it found — a lesson Washington should observe as it manages the Thomas scandal.
The core of the case against Paxton is familiar: that he abused the power of his office to benefit a Texas real estate magnate who Paxton says is just a friend. That magnate, Nate Paul, donated $25,000 to Paxton’s 2018 campaign. Among other charges, Paxton appears to have returned the favor by intervening in an FBI probe on Paul’s behalf, including providing Paul with documents related to the investigation against him. Paxton also ordered his staff to rewrite an opinion related to foreclosure sales under COVID-19 restrictions to protect Paul’s 13 properties set for foreclosure.
The House General Investigating Committee (led by Republicans but bipartisan in composition) shared these allegations in shocking detail after completing a thorough investigation that included 12 staff members from the attorney general’s office. Then they acted, impeaching Paxton on the basis of their painstakingly accumulated findings.
While Paxton’s fate is not yet decided (the saga now shifts to the state Senate for a trial), it is refreshing to see that there are Republican lawmakers who are willing to use the power of their offices to defend conventional constitutional norms and basic ethical standards. Though given a similar opportunity, Republicans in the U.S. Senate have thus far failed to raise a finger to investigate the allegations against Thomas for his shady dealings with Crow. Quite the opposite: They have protested loudly in defense of the indefensible Thomas.
A few weeks ago, U.S. District Judge Mark Wolf testified before a Senate Judiciary subcommittee about his concerns that the Judicial Conference — the federal courts’ policy-making body — had neglected to properly investigate complaints against Thomas over a decade ago. Those complaints were quite similar to the newest revelations about Thomas.
Thomas allegedly failed to disclose gifts he received from Crow and the Federalist Society, which Wolf believed should have been investigated. Why? Because Thomas repeatedly issues opinions that could personally benefit Crow, including ruling in favor of groups directly connected to Crow. But, as Wolf testified, information was hidden from members of the Conference, preventing them from ever properly investigating or holding Thomas accountable.
Wolf’s explosive testimony demonstrated how long in the tooth some of these corruption concerns are. Yet, Republican senators covered their ears and stayed the denialist course. Taking a page from Paxton and their colleague Sen. Ted Cruz (R-Texas), who decried Texas Republicans as “liberals,” Sens. Mike Lee (R-Utah) and John Kennedy (R-La.) responded by smearing Wolf, a conservative Reagan appointee and fellow Republican who has served in high-ranking government positions since the Ford Administration.
It seems there are no blows low enough when there is a risk that the conservative grip on our courts might be loosened, even slightly.
Republican lawmakers in Texas, by contrast, have refused to play petty politics with the rule of law — even when it means turning against a political ally. Texas Rep. David Spiller, for example, supported impeachment because Paxton “put the interest of himself above the laws of the state of Texas.” Rep. Charlie Geren spoke of the importance for investigations to “look beyond partisan affiliation to take the necessary steps to protect the institution that is our state and government.” Rep. Cody Harris insisted that behavior like Paxton’s “cannot be ignored, particularly when done by the chief law enforcement officer of the state.”
Imagine if the same sentiments were extended to Thomas whose constitutional interpretations govern every aspect of our lives.
Unfortunately, Senate Republicans seem unlikely to change course even with more damning evidence. Their Democratic counterparts must therefore be the ones to produce it alone.
Creating a platform for Wolf’s testimony was illuminating, but hardly enough to counter Thomas’ corruption. It’s time for the Senate to use its full power to properly investigate their relationship and its influence on Thomas’ rulings.
The lead investigator against Paxton, Erin Epley, laid out a standard that is both probative and persuasive: “I ask that you look at the pattern and the deviations from the norm, questions not just of criminal activity but of ethical impropriety and for lacking in transparency,” Epley told the committee. “I ask you to consider the benefits.” Senate Democrats would be wise to borrow that invitation on behalf of the nation by conducting a thorough investigation, calling all essential witnesses and experts and sharing the results publicly and in great detail.
At Alliance for Justice (AFJ), we believe the evidence already revealed has been enough. We’ve been calling for Thomas to resign since the first ProPublica article because every day that he doesn’t is another day that the rule of law is imperiled. But we know that there is more work to move public opinion. So, do the work.
No official, at any level of our government, should ever be above accountability to the rule of law and the standard of ethics we hold them to. Ken Paxton is no exception, and neither is Justice Thomas. The only real difference between Paxton and Thomas is in the reaction between Texas and federal lawmakers.
Rakim Brooks is the president of Alliance for Justice and a public interest appellate lawyer. As a contributor to Democracy Docket, Brooks writes about issues relating to our state and federal courts as well as reforms to our judicial systems.