Justice Clarence Thomas and the Plague of Bad Reporting The Washington Post and ProPublica commit comically incompetent journalism. But by stirring up animus, they increase the risk of a tragic ending.
By James Taranto
ProPublica’s big scoop turned out to be a quarter-teaspoon. In an error-filled report last week, the opinionated news site got one point right: Justice Clarence Thomas didn’t disclose the 2014 sale of his one-third interest in three Savannah, Ga., properties to a company controlled by his friend Harlan Crow. He was legally required to do so. On these pages, in an article published online Sunday, I observed that he may have to amend his financial-disclosure form for that year.
On Monday, “a source close to Thomas” told CNN that the justice would do so. “The source said . . . it was an oversight not to report the real estate transaction. Thomas believed he didn’t have to disclose because he lost money on the deal, according to the source.” It is the justice’s share of the sale price ($1,000 or more), not a profit, that triggers the statutory obligation to report.
How big a deal is it to amend a form after missing a disclosure? Consider these examples, which reader Darin Bartram dug up:
• Justice Ruth Bader Ginsburg’s 2012 disclosure amended her 2011 report, which “inadvertently omitted” the sale of shares in an exchange-traded fund that she had bought earlier the same year. “The Value Code should of [sic] been L and the Gain Code should of [sic] been A,” the amendment says.
• Ginsburg amended her 2017 disclosure to reflect that she had “inadvertently omitted” a gift of an opera costume worth $4,500.
• Justice Stephen Breyer reported in an amended 2018 disclosure that he had “inadvertently omitted” two stock sales by his wife, one in 2006 and one in 2018.
• In February 2022, three days after President Biden nominated her to the Supreme Court, Judge Ketanji Brown Jackson amended her 2020 disclosure to note that in various years between 2011 and 2021 she had “inadvertently omitted” travel reimbursements for two speaking trips, a university teaching salary, four nonprofit board memberships, her husband’s consulting income and a 529 college savings plan. No senator mentioned these omissions at her confirmation hearings.
Apart from Ginsburg’s disappointing grammar, it’s hard to see a scandal here. Justice Thomas’s decision to amend his disclosure is so insignificant that ProPublica, which discovered and hyped the omission, hasn’t bothered to claim vindication or to report the amendment at all. Justin Elliott, a member of the site’s anti-Thomas troika, tweeted the CNN story but didn’t mention the amended disclosure. Instead he touted the revelation that “Harlan Crow is not charging Justice Thomas’ mother rent.”
ProPublica has responded to my article with silence. It has neither acknowledged the errors in its reporting nor claimed that there were any errors in mine. The attitude seems to be that they’re entitled to their own opinion and to their own facts. There has been almost no comment from other so-called mainstream journalists either, and the few criticisms I’ve seen have been insubstantial. An editor at a regional newspaper tweeted: “.@jamestaranto’s conclusion is clear. Thomas ‘may need to file an amended form’ and ‘any failure to disclose was an honest mistake.’ Giving Thomas the benefit of the doubt is not uncovering ‘the truth,’ no matter how many column inches you spend attacking good journalists.”
I would never attack good journalists, if only for fear of harming an endangered species. My contention is that the ProPublica troika’s work is a travesty of journalism, and I am increasingly disinclined to credit them with practicing journalism at all. Instead, they function as political opposition researchers. They follow the facts only far enough to find a plausible complaint that Justice Thomas did something wrong, which they baselessly frame as evidence of corruption, then move on to the next accusation. (They were also less clear than I was in identifying his actual error, palming that opinion off on “four ethics experts.” They identified only two of those so-called experts, both of whom expressed prejudicial views about Thomas. One had a 14-page letter demanding an investigation—replete with factual errors—ready to go the day after the ProPublica piece ran.)
Other media have operated in the same fashion. Mr. Elliott’s tweet referred to CNN’s revelation that “as a part of the negotiated sale price,” Leola Williams, “who was 85 at the time of the deal, was given an occupancy agreement to be able to live in the home for the rest of her life, the source said. She lives rent free but is responsible for paying the property taxes and insurance.” That may explain why Ms. Williams, Justice Thomas and his brother’s heirs agreed to sell the house at a loss. The $133,363 sale price also bought Mr. Crow’s company two nearby empty lots, which it sold to another developer in 2019.
Richard Tofel, a ProPublica founder and former president, thinks it’s a scandal that a white billionaire isn’t demanding rent from an elderly black woman: “Can’t imagine how any reasonable person could distinguish this from Crow giving Thomas cash every month,” Mr. Tofel tweeted. Here’s how: the same way I can distinguish between my mortgage payment and a gift to my bank. In making the former, I am fulfilling an obligation under the agreement that financed the purchase of my home. Further, while the continued use of the Savannah house could be characterized as a payment, it is in kind, not cash, and it goes to Ms. Williams, not Justice Thomas.
Over the weekend a team of four reporters at the Washington Post—Shawn Boburg and Emma Brown, with Jonathan O’Connell and Alice Crites listed as having “contributed”—uncovered another Thomas error. This one is a doozy. According to the 1,240-word story, which appeared on the front page of Monday’s paper, Justice Thomas “for years” has claimed income from a company that “has not existed since 2006.” That firm, Ginger Ltd. Partnership, managed real estate in Nebraska and was founded by his wife, Ginni Thomas, and her relatives. Seventeen years ago it was dissolved and its holdings were transferred to a new entity, Ginger Holdings LLC.
That’s it. The company changed legal form but kept the same name and address. There’s no suggestion that its business has changed or that Justice Thomas failed to disclose any income. “The previously unreported misstatement might be dismissed as a paperwork error,” the Post quartet allow. “But it is among a series of errors and omissions that Thomas has made.” It’s admittedly trivial but fits the pre-established narrative, so the Post runs with it.
The Post quartet cite ProPublica’s contribution to that narrative as if it were established fact: “Thomas failed to report the sale of the three Georgia properties to Crow in 2014, and he also continued to report that he owned a share of those properties as late as 2015, his disclosure forms show. In addition, beginning in 2010, his disclosures described the properties as being located in Liberty County, Ga., even though they were actually located in Chatham County.”
Talk about a series of errors and omissions. As I reported, there was a family property in Liberty County; Justice Thomas disclosed only one property, in Liberty County, in 2010-15; and he never disclosed his part-ownership of the Savannah house where his mother lived—nor was he obligated to, as it wasn’t a rental property and generated no income.
The Post quartet compound ProPublica’s bad reporting by piling on errors of their own: Whereas the troika simply ignored Liberty County, the quartet apparently noticed the reference in Justice Thomas’s 2010-15 disclosures and explained it by simply assuming it was a lie rather than stopping to wonder if ProPublica had missed something. The Post’s story was published before mine, but it has yet to be corrected.
None of this is to deny that the Thomas revelations were newsworthy. They’re the sort of story that deserves a few hundred words on page 4, and that a single competent reporter should be able to handle. That describes an exemplary 1991 piece by the Post’s Ruth Marcus (now a columnist) headlined “Brennan Discloses Gifts From Local Developer.”
Charles E. Smith, a friend of Justice William Brennan, gave Brennan and his wife cash gifts of $20,000 and forgave $60,000 in mortgage principal before Brennan retired, then forgave another $60,000 after he took senior status in 1990.
Brennan told Ms. Marcus that Smith intended the money as “recognition for my public service,” that it “reflected only the affection and generosity of a dear friend,” and that Smith and his companies never had “any matters before the court or that were affected by court decisions”—all of which is also true of Justice Thomas and Mr. Crow.
Ms. Marcus quoted the American Bar Association’s Code of Judicial Conduct, which suggested that it was acceptable for Brennan to accept the gifts, and Stephen Gillers, a “New York University legal ethics expert,” who said: “If it’s a close personal friend and there’s no direct or indirect appearance before the judge, it’s tolerable but not something you want to encourage.”
A June 2022 protest near Justice Clarence Thomas’s home. Photo: roberto schmidt/Agence France-Presse/Getty Images
Mr. Gillers is still at NYU and retains “expert” status at the Post. The quartet quote him: “Any presumption in favor of Thomas’s integrity and commitment to comply with the law is gone. His assurances and promises cannot be trusted. Is there more? What’s the whole story? The nation needs to know.”
Readers can draw their own conclusions about Mr. Gillers. As for the Post, it was a much better newspaper when Ruth Marcus worked there as a reporter.
Our tale so far may seem like a comedy of errors, and I’ll admit I laughed out loud more than once at the hypocrisy and incompetence I discovered as I reported this article. But a tragic ending is possible. Supreme Court justices are in danger of physical as well as political and journalistic attack. Since the May 2022 leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, protest mobs have gathered outside his and several colleagues’ homes, and the justices’ security regimen has become tighter and more intrusive.
In the wee hours of June 8, 2022, two weeks before the decision’s release, U.S. marshals guarding Justice Brett Kavanaugh’s house arrested a man carrying a gun and other weapons. A federal grand jury indicted the man for attempted assassination (he has entered a not-guilty plea). According to the law-enforcement affidavit that accompanied the indictment, the defendant told police “that he was upset about the leak” and that he had begun “thinking about how to give his life purpose and decided he would kill the Supreme Court Justice” after finding his address on the internet.
This crime was triggered by an act of journalism, namely Politico’s reporting of the leaked opinion. I wish the opinion hadn’t been published until the end of June, but I can’t fault Politico. Josh Gerstein and Alexander Ward got a genuine, highly newsworthy scoop. They took care to confirm it and to report it truthfully. Their tone was measured; they meant to inform, not inflame. By contrast, the work of ProPublica and today’s Washington Post is reckless with the facts, and a reasonable person could conclude it is intended to stir up animus against Justice Thomas and other disfavored public officials.
The Committee on Financial Disclosures of the Administrative Office of the U.S. Courts takes a keen interest in the justices’ safety and privacy. It provides federal judges with a two-page document titled “Security Matters” that reminds them their financial-disclosure report is a public document and instructs them to “avoid over-reporting.”
One of its instructions: “For rental properties, provide only the city (or county) and state in which the property is located. Do not use street addresses, lot numbers, or survey descriptions. You may identify multiple properties as ‘Rental Property #1, Cincinnati, Ohio,’ ‘Rental Property #2, Cincinnati, Ohio.’ ” That’s precisely what Justice Thomas did when he had an ownership interest in rental properties—and the ProPublica troika insinuated he was trying to cover something up.
The committee is also concerned to protect judges’ families: “Do not identify relatives by name or designation such as ‘spouse,’ ‘brother,’ or ‘mother-in-law.’ ”
CNN’s Monday report includes the home address of Justice Thomas’s mother. Sometimes journalists should avoid overreporting, too. As for bad reporting, we should avoid it like the plague it has become.
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