In This Episode
Clarence Thomas has been accepting lavish gifts from a Republican mega-donor for almost as long as he’s been on the Supreme Court, while disclosing none of it. Or rather, he initially disclosed some of it, but stopped when reporters got wise to the relationship. Meanwhile, his real-estate tycoon patron, Harlan Crow, has had business before the Supreme Court, and Thomas did not recuse himself. Since these revelations came to light, Thomas has shown no indication of remorse, or that he’ll change the nature of this relationship—he enjoys the same kind of impunity as Donald Trump, with the added benefit of lifetime tenure on the bench. We’ve never lived in a world of perfect political accountability, but the Clarence Thomas problem is new. Richard Nixon had to resign the presidency. Spiro Agnew went down. Supreme Court Justice Abe Fortas was forced to resign in 1969. What changed, and why? Former Congresswoman Elizabeth Holtzman joins host Brian Beutler to discuss her role on the House Judiciary Committee during the Watergate scandal, and what it would take to hold public figures accountable for their corruption at least some of the time, like we were able to in the 60s and 70s.
Brian Beutler: Hello and welcome to Positively Dreadful with me your host, Brian Beutler. I want to talk this week about Clarence Thomas, the Supreme Court justice per se, and also about our collective Clarence Thomas problem. The first part’s pretty easy. Thomas has been in the news a lot lately. Over the past few weeks, we’ve learned a lot about how he’s benefited in a personal financial sense from being a Supreme Court justice. When he’s spoken publicly about his private life, he’s sort of taken pains to present himself as the Supreme Court’s everyman. He didn’t come out of privilege and didn’t attend an Ivy League university as an undergraduate. And all of that is true. But he also likes to talk about how he cherishes his own humble sensibility. He doesn’t like luxury. He prefers RV’s and sitting around campfires with regular folks. None of that is true for almost as long as he’s been a justice, Thomas has been a patron of a right wing billionaire named Harlan Crow. And in that capacity, Crow has treated him to lavish vacations, gifts, even money. And Thomas disclosed none of it. Or rather, he initially disclosed some of it. But then reporters got wise to the relationship between the two men. And so he stopped disclosing the gifts. Meanwhile, Crow has had business before the Supreme Court, and Thomas has heard the cases without recusing. And since these revelations have come to light, Thomas has shown no indication of remorse or that’ll change the nature of his relationship with Crow. And that is unfortunately, totally consistent for Thomas. When his wife Ginni’s participation in the effort to overturn the 2020 election came to light, everyone noticed that Thomas had cast the sole vote against requiring the Trump administration records to be turned over to the House January six committee. Lo and behold, his wife’s communications were among those records. But then Thomas simply blew off calls for him to recuse from future insurrection related cases. So that brings us to the Clarence Thomas problem, which Thomas embodies but isn’t specific to him. The Clarence Thomas problem, as I see it, is that Thomas doesn’t care at all about the rules. And we, us little guys, can’t really do anything about it. Other people could do some stuff about it, and they should. Senate Democrats could further expose Thomas’s corrupt relationship with Crow and perhaps others, and I hope they will pursue that. But even powerful people who care about institutional integrity will eventually run into the fact that Thomas has enough allies in similarly powerful roles to insulate him from any meaningful accountability. He has near complete immunity from consequences because he’s a kept man in conservative politics. As long as there are at least 34 Republican senators and there will be for as long as Thomas is alive, he won’t be removed from the Supreme Court. John Roberts won’t ask him to step down. Republicans in Congress will make excuses for his conduct. Or worse, they’ll pretend he did nothing wrong and claim he’s the victim of a smear campaign. In the unlikely event that Thomas were ever charged with a crime. The right would rise up against the prosecutors and the judges. They tried to spoil the case or nullify the jury. Basically, Thomas enjoys the same kind of impunity that Donald Trump has with the added benefit of lifetime tenure on his court. And it’s not that Trump has faced no consequences for his bad deeds. Being a bad guy made him very unpopular. He lost reelection. He’s a defendant in a bunch of lawsuits. He’s under criminal indictment in New York, may be soon again in Georgia and even federally. But Republicans are trying to protect him from the law. And while he was president, they reflexively protected him from oversight and impeachment. It’s a poorly kept secret in Washington that nearly all of the Republicans who voted to acquit Donald Trump in his impeachments understood that he, in fact, committed high crimes and misdemeanors. They just decided he should get away with them. And so he did. And he thus became an increasingly aggressive law and norm breaker. I’m talking about conservatives and Republicans here because they’re the ones who have availed themselves of these methods. But Democrats could, in theory, exploit them, too, and then politics would become a completely accountability free realm. Keep that in mind if you think I’m just being a partisan who wants to see Clarence Thomas and Donald Trump fall. Republicans didn’t invent the tools they’re using to protect those two men. Those tools have been lying around forever. It’s just that nobody used them in quite this way before. Now one party has picked those tools up. Someday both parties might. And we’ve never lived in a world of perfect political accountability. But the Clarence Thomas problem is new. Richard Nixon may not have gotten everything that was coming to him, but he did have to resign the presidency. Spiro Agnew went down. Supreme Court Justice Abe Fortas was forced to resign in 1969 and was even threatened with prosecution for acts of corruption that were real. But Clarence Thomas makes Abe Fortas look like a piker. And yet Thomas might never face even a congressional investigation. So what changed and why? And is there anything we can do with current tools or ones we might create in the future to make the kind of accountability we saw in the 1960s and the 1970s possible today so that people with corrupt instincts might be deterred from committing corrupt acts. That’s what I want to discuss with Congresswoman Elizabeth Holtzman. She was a member of Congress and the House Judiciary Committee during the Watergate scandal. She was precent in suspecting Richard Nixon had connived to arrange a pardon for himself and understood, even at the time when it was unfashionable that pardoning Nixon would set a bad precedent. She remembers how our system used to work at least a bit better than it does now when powerful people were caught red handed doing bad things. So let’s see if there are some lessons we can draw from that history. Congresswoman Elizabeth Holtzman, thanks for coming on Positively Dreadful.
Elizabeth Holtzman: Thanks for having me on this dreadful show. [laughter]
Brian Beutler: Oh, the show is good. We just talk [both speaking] about dreadful things. So before we get into it, do you disagree at all with how I laid out the conundrum and the history that we’re going to discuss today?
Elizabeth Holtzman: Well, I’m not as totally cynical as you are [laughter] although I should be. But it’s more or less right. I mean, Congress has had power to investigate corruption, misconduct, abuse of power and to take action. But too often it’s just turned away. And that’s the problem. Congress doesn’t do. Look. The framers of the Constitution understood, that there would be corruption, there would be abuse of power. They understood that presidents would do dangerous and wrongful things. They didn’t know the name of the president. They didn’t know whether it would be Nixon or Trump or somebody else. But they gave Congress the power to act. They gave others the power to act. They knew there would be bad people in government. They knew government was not going to be based, not be composed of angels. So there’s a system of checks and balances, but for the checks and balances to work Congress, the courts, the executive branch, everybody’s got to participate. Sometimes they just want to turn away. And we’ve seen too much of that. I mean, we didn’t have to wait until now for a Senate committee to suggest that they’re going to write a judicial code for the Supreme Court. We don’t have to wait. We didn’t have to wait till now for Congress to act about Clarence Thomas. The Democrats controlled the House up to January 1st, third, actually. Nobody held a hearing about Clarence Thomas. We know about his refusal to recuse. At that time, why not? Actually, all that seems to be happening now is a clamor for a judicial code. That’s fine and good, but that’s not an answer. Answer has to be investigating the wrongdoing, exposing the wrongdoing. Who knows what will come of it. Senator Wyden, interestingly enough, has asked the beneficiary, a benefactor, I should say, of Clarence Thomas, to report about all of the gifts he gave. Wouldn’t it be interesting if they weren’t gifts they would take in as business expenses? Because that’s really what they were. They were payoffs to Clarence Thomas. So what’s incumbent upon your listeners on all of us is to kind of pressure the Congress to do what’s in its power to do. And every everybody in government has a responsibility to make government work for the people, to make sure that it’s honest and working for everybody, to make sure there’s no corruption on the court, that it’s not responding to payoffs from particular people or particular institutions and to hold their feet to the fire, not just every four years.
Brian Beutler: Let’s start here. Imagine it’s 1973 or 1974. You’re serving in the House on the Judiciary Committee, and a Supreme Court justice is revealed to have accepted the equivalent in today’s dollars of millions of dollars in gifts from some patron violated whatever disclosure rules existed at the time, and then ruled in cases his patron had direct interest in. What would you have done back then in this hypothetical? What do you think your committee in Congress as a whole would have done confronted with that set of facts?
Elizabeth Holtzman: Well, I would have demanded hearings and investigation of what happened. I might even have asked for Justice Department investigation. But can I tell you that the Congress would have done the right thing, that Congress did the right thing in impeachment, which is pretty amazing. And I don’t think they do do the right thing in terms of the result. But they did the right thing in terms of the process. It was a fair process. It’s withstood the test of history. I mean, we’re talking about almost 50 years ago and nobody has seriously challenged the way in which that was conducted. But right shortly after the House Judiciary Committee voted for impeachment, then the smoking gun tape came out and showed that Richard Nixon himself ordered the cover up. At that point, all the Republicans in the House, on the House Judiciary Committee agreed that he should be impeached. And then Nixon resigned in the face of that. Within roughly a month, President Ford pardoned him. And there was a question as to whether the pardon was part of a deal to get Nixon out of office. Why did they want Nixon out of office? Because the midterm elections were coming. And if Nixon were going to fight the impeachment in the Senate. That fight would come right before the election and no Republican would have been elected to any office in America if that had happened. So they need to get him out of office. Was the pardon issued as part of a deal to get him out of office by Gerald Ford? Well, the House Judiciary Committee subcommittee on which I sat was completely uninterested in finding out the truth about the pardon. And so, yes, there was a hearing because members of the House introduced special resolutions that called for a hearing. But I sat in that hearing room. I was the low person on the totem pole. I was the last person to ask a question. And and the president of the United States did come to us. He said, see, I’m here to answer any question that you have. Nobody asked him, neither Democrat or Republican, any tough question about the pardon. So finally came to me. I was hoping [laughs] you know I’m just a brand new member of Congress and still pretty young. And I thought, well, I’m going to take on the president of the United States. I could lose my seat. But I said, okay, I’m going to do what’s right. But I was hoping, praying that somebody there were eight people ahead of me. Somebody would ask a tough question, would try to get at the truth. No, nobody asked. [laughter] So I had to ask, including asking him why he issued the pardon in the way he did without consulting with the special prosecutor in haste, and and so forth. And was there a deal over the pardon? Well, okay, I got all those questions out. I never got an answer, but nobody else asked them. So when you ask me would the House Judiciary Committee or the House of Representatives have acted against Clarence Thomas, if that were the case at that time, I can’t answer that. Part of the reason they acted the way they did on impeachment was that the American people demanded that the House act in that way.
Brian Beutler: So you’re saying that some of the pathologies that are creating the accountability drought we’re living with today existed then?
Elizabeth Holtzman: Oh, yes. Don’t romanticize [laughter] that time. I mean, yes, they did wonderful things, but they also didn’t do what had to be done.
Brian Beutler: Okay. So after the actual Watergate scandal was over, Republicans lost the election. The Watergate babies came to Congress. Congress passed a bunch of reforms. Talk a little bit about the crux of the post-Watergate reforms and the extent to which they managed to keep a lid on that kind of Nixonian corruption in the ensuing years or decades.
Elizabeth Holtzman: Well, the reforms really came out of Watergate. So one reform was finance, campaign finance reform, because the cash, the illegal cash that was going into the Nixon campaign was used to finance the cover up, was used to pay off the burglars, was used to offer them presidential pardons. So we had to change of campaign finance system. That worked until people figured out how to drill big holes that you could drive a truck through in those laws. They’ve never been properly revised. And then you had a Supreme Court that basically said, oh, money is speech, which is, of course, nonsense. It’s a metaphor. Money is it’s not like one and one equals two. Money does not equal speech. That’s a poetic metaphor. It is not a fact. So that’s led to various terrible things about the whole campaign finance system, which has corrupted our politics in a very deep way. But that reform pretty much held for, I would say, ten, 15 years. Okay. Then you had a special prosecutor law that I helped to write, which was to ensure that there would be a full nonpartisan, professional investigation by somebody not tied to the Justice Department to investigate presidential misconduct. Okay. And that the attorney general would not control. We wouldn’t have had a William Barr situation if that law had been in effect. I could tell you that where Barr basically covered up and lied about the contents of the Mueller report, saying that Mueller never found that Trump had possibly engaged in obstruction of justice when, in fact, he had. Okay. Anyway, so the special prosecutor law was enacted. That was to make sure that we had a special prosecutor in place, because when we started the investigation of Nixon, when the Nixon investigation started, I should say. The Justice Department was part and parcel of the problem, not part and parcel of the solution. Okay. So those were two of the reforms. You also had huge reforms in terms of review of the CIA and what it was doing, because some of that the CIA, of course, it helped them. Even the Nixon White House provided them with disguises and other kinds of assistance. And that whole Pandora’s box was opened, investigated thoroughly, and many changes were made in terms of have accountability of the CIA and the surveillance agencies. So those are the three major reforms that took place. The special prosecutor law was allowed to drop. Congress decided that neither Republicans or Democrats really wanted a thorough investigation [laughs] of a president. And so that didn’t work out. But I think the CIA reforms mostly work. That’s what’s lasted. Some of the campaign finance was worked for a brief period of time, but we need to reform them. And, of course, at the same time, there was a law Ethics and Government Act that imposed a reporting requirements on judges. For some reason, I don’t. I voted for that. I don’t remember why we didn’t include the Supreme Court, but we didn’t.
Brian Beutler: Oh, well. [laughter]
Elizabeth Holtzman: Oh well, so that’s the part of the problem that we have today, is that you have a Supreme Court that, despite the letter of John Roberts, really is accountable to nobody. And it’s not clear, number one, whether they are, in fact, adhering to the code that was set up for the lower level judges. And secondly, if they’re not, who is enforcing it? It’s clear nobody’s been enforcing it. [music plays]
Brian Beutler: So what’s your assessment of what happened in the past 40 some years? Like why didn’t the post Nixon consensus that Watergate style corruption is bad and requires rules to prevent it from happening? Why couldn’t that last more than like a generation?
Elizabeth Holtzman: Because even if you take Nixon, it didn’t. It wasn’t the Congress that started the investigation into Nixon. Wasn’t somebody said, you know, he’s really corrupt and we have to do something about Watergate. Uh uh. What happened was that he got a tough federal judge, actually a very conservative Republican, who said when he was doing the trial of the Watergate burglars, that he smelled a rat, called on the Senate to act. And we got a special prosecutor. And began to uncover some information. And then when you had the Saturday Night Massacre in which Nixon fired the special prosecutor, the American people said, Congress, you have to do something. Congress did nothing. Up to that point. You had revelations that there was a taping system in the White House. You had John Dean saying, I told President Nixon about the payoffs to the burglars to keep them quiet. Did Congress doing anything? No, It was only after Archibald Cox got fired, the American people said, we’re not a banana Republican, Republic. Congress, you have to do something. So you don’t have a you can’t just assume that Congress on its own is going to rise up and do the right thing. We’re seeing this with regard to Clarence Thomas and the Supreme Court. I mean, get Brett Kavanaugh his confirmation. I mean, his FBI investigation was never completed. It was done deliberately in a shortened fashion so that truth would not come out. Was it never completed? That was years ago. Democrats controlled both the House and the Senate at that time. What did they do about it? Nothing. So it’s not surprising. Somehow there has to be public revulsion at what we see. And I hope that that’s what’s happening now with the Supreme Court, although I must say, I’m very surprised at how the Supreme Court, apparently every member of the court is kind of blowing off the problem of judicial ethics. I don’t know if you had a chance to read the letter that was sent to Senator Durbin.
Brian Beutler: Yeah.
Elizabeth Holtzman: But it’s riddled with loopholes.
Brian Beutler: We recorded this episode on Wednesday, April 26th. On Tuesday, the Supreme Court issued a statement signed by all nine justices who self attested to their own ethical standards. Trust us as if they’ve earned our trust. Or as if every one of them can possibly know what the other eight are up to when they’re not all together in conference or on the bench.
Elizabeth Holtzman: Cause all the justices signed this today. What they’ve [?] reaffirm and restate foundational ethical principles and practices to which they subscribe? Well, then it goes on. In 1991, members of the court voluntarily adopted a resolution. And since then, justices have followed the financial disclosure requirements. Not did they know, in fact, that every justice followed those requirements? How did they say something like that? These are the justices of the Supreme Court. How can they say every justice followed that. We know that Clarence Thomas didn’t follow it. Apparently, Gorsuch may not have followed it. So how do they say that?
Brian Beutler: As we were producing and scheduling this episode, another Supreme Court scandal came to light. This one involves Justice Neil Gorsuch, the Donald Trump appointee. Four years before he reached the Supreme Court. He tried and failed to sell a large piece of property in Colorado. Then, nine days after his confirmation, he found a buyer. It just happened to be the CEO of a huge law firm called Greenberg Traurig, which has business before the court. Gorsuch concealed the buyer and continued to rule in Greenberg’s cases, siding with Greenberg the overwhelming majority of the time.
Elizabeth Holtzman: So I think it behooves the American people to get to the bottom of this by demanding action by Congress. And what Congress can do is investigate. They can investigate Mr. Thomas’s benefactor. How did he treat this? Were these business expenses on his tax returns? [laughter] Was that big yacht trip a gift? Did he pay gift taxes? Or how, how did he treat that? Thomas said, oh, this is very dear friend, but did the dear friend treat this as a business expense? And what other gifts did that, dear friend, give to Clarence Thomas and his wife and his wife? So maybe if Congress this now we don’t have the House. So the Senate is the one that has to do it at the Senate, does some serious investigations. Maybe they can uncover the sordid truth about what’s been going on with Clarence Thomas. Can they remove him from office? Maybe not. But depending on what they uncover, the American people might demand his removal from office.
Brian Beutler: So I think there’s a subplot here where even though Nixon fell after Congress got involved, there was a consensus he had to resign at the time that many right wing elites were upset that he was forced out and they resolved among themselves that it should never happen, at least to a Republican president again. That they get caught in a in a scandal like this? And between public pressure and revelations that the heat gets too hot and they have to resign? This is where the basic idea for Fox News came from and the whole conservative counter establishment was born. And I think the idea was basically that that Republican power at least should be immune to scrutiny. Did that work? I mean, are we just living with Trump and Clarence Thomas seemingly unable to be held accountable? Like, is it a sign that that strategy to to ring fence Republican conduct has been a success?
Elizabeth Holtzman: Well, I think the appointment of a very right wing justices and single minded effort to do that has had some important impact in protecting presidents and protecting right wing activities. But on the other hand, the judge in Texas, Kacsmaryk, his ruling on abortion has lit a fire under much of the country, and particularly young people. And it’s produced a counter response that can undo what he set in motion. I think still, the lesson of Watergate, really, of what happened to Nixon and why, you know, other things didn’t happen in the same way to other miscreants, other people who may have committed crimes is in part the American people didn’t rise up enough. That’s what took Nixon down. Plus, they were easy, the facts came out in a way that became they were not ambiguous, the facts. Tape recordings showed Nixon’s own personal involvement in the cover up, and that became a way you couldn’t explain that away. But, you know, the stuff about Clarence Thomas, probably many Americans are not paying attention to that. They don’t know the ins and outs, They don’t know the details. They don’t know that he got the value of $500,000 in a free trip, that hundreds of thousands of dollars were paid by this benefactor through to his wife through various not for profit corporations. We don’t know how much money she got. Free trips, as you mentioned, free use of the plane that this guy had, Clarence Thomas had free use of a plane. I mean, stop and think about it. And I think this is such so clearly a pay off because you know that if Clarence Thomas ever stopped voting the way he did, that money would suddenly dry up. It’s not friendship. It’s payoff for doing the bidding of the extreme right.
Brian Beutler: And we know that because Harlan Crow and Clarence Thomas weren’t friends before Clarence Thomas became a Supreme Court justice. Thomas tried to paper this over when he finally commented it on on this all where he said, for over 25 years I’ve had this friend, but I think he was counting on people not to check the calendar about when he was confirmed to the Supreme Court, which was over 30 years ago. So this guy, Harlan Crow, ingratiated himself to Clarence Thomas only after he has Supreme Court Justice power. And I think that that tells a big story on its own. And I’m wondering, you know, given that kind of lawyering of the facts that I think Thomas did in his statement, and obviously Donald Trump doesn’t even bother lawyering when he does bad things and gets caught, he just barrels right through it. Do you do you think that on top of the things that you’ve mentioned, that that there’s just a more corrupt political culture today than there was 50 years ago? Like, are our leaders less ethical now because of the erosion of the reforms and the polarization of the parties that there’s just it’s kind of like open season and everyone feels like they can get away with all kinds of corruption.
Elizabeth Holtzman: Well, in the influence of big money to get elected, I mean, the first campaign finance reform put a limit on the amount of money that could be spent in a campaign. That was what the Supreme Court did it away with immediately. So once you didn’t have limits, you needed to get as much money as you can. And so therefore, the big benefactors, the big donors play a bigger role than ever before and money does. So, yes, that that’s a big factor, but I’m not sure that it’s really deep down so different. I mean, when Clarence Thomas was being vetted for the Supreme Court in his confirmation hearings, I know that there were witnesses who were never called who wanted to testify that he had engaged in sexual harassment. I know because somebody called my office, a woman who was located outside of New York, and I had somebody on my staff interview her lawyer to see whether she was credible. And they felt that she was very credible. And we called the committee, the Senate Judiciary Committee. They never, ever reached out to her. And, you know, if you read the book, is it, Strange Justice by Jill Abramson and another writer. There was another woman who was had been scheduled to testify about sexual harassment against Clarence Thomas who was never actually called to testify before the committee. So, Clarence Thomas, it is an impeachable offense to lie to secure your position in government or to obtain it by fraud, as it appears he may well have done. Where was the investigation all these years? What happened? So it’s not just now. It’s been a reluctance for a long time to take these issues on.
Brian Beutler: I have the sense and I find it kind of dispiriting that the success that people like Roger Ailes and through him, Donald Trump and Clarence Thomas have had insulating themselves from accountability is that it’s begun to affect the mindset of, you know, other institutions of accountability, of leaders who maybe actually have good instincts, good ethics. The fact that we all assume that, like the bad guys, will all rush to protect themselves, has demoralized leaders with real power. And they just decide, look, what’s the point in investigating or prosecuting or impeaching? Because they just assume in advance that the outcome is written, like already written and that they’re going to lose the vote in the final analysis. So why even bother?
Elizabeth Holtzman: Well, yes, I think that that’s obviously a consequence. I think the failure to investigate the pardon created another consequence, which I think and I predicted at the time and predicted it many times after Ford issued the pardon of Nixon, was that it would send a message to future presidents that they could act with impunity, that nothing would ever happen to them. And it was really the wrong message. But, you know, Ford was a friend. He’d been majority minority leader in the House. He was friendly, friendly guy. People didn’t want to go after him. They figured that the American people had already had enough. They got Nixon resigned. How much more blood were they going to ask for? So, you know, is was an unwillingness really to finish the job, to do the job in a thorough way. It’s not something that just happened now. I think there’s a real reluctance in Congress to and has been for a very long time, at least since I was there, to do the right thing without an enormous push and on impeachment that was from one judge, a Republican conservative Republican judge. And from the American people.
Brian Beutler: Why do you think that is? Why do you think members of Congress, both in the seventies and then in the nineties and now feel reluctant to do the kind of investigating and digging that when it’s done right and when there’s real wrongdoing to look into and to expose can redound. It’s not just the right thing to do. It can redound to your benefit politically if you’re if you’re investigating, you’re a Democrat investigating Richard Nixon or Donald Trump, or if you’re a Republican investigating a Democratic officeholder who is corrupt. If you get the goods, then it’s good for your party as well. And so it’s kind of mysterious to me why a committee chairman who have the opportunity to do these kinds of investigations feel reluctant to do it or talk themselves into the idea that the American people have had enough or whatever it is that makes them decide, I don’t want to touch this.
Elizabeth Holtzman: I wish I knew the answer. I don’t. As I said, I remember sitting on that committee and hoping [laughs] that somebody would ask for the tough questions before me about the pardon. Nobody did. Now, how do I explain that there were some very liberal and highly respected members of that subcommittee. They did not want to ask for the tough questions because they did not want to have to go and investigate the pardon. I had asked them to do an investigation before Ford came and they kept saying, oh, Liz, that’s a really great idea. We should do that. We should interview witnesses, we should investigate what happened, all that stuff, so we can ask him appropriate questions. That, would they just yessed me to death they had no intention of doing that? Why? I don’t know. I can only speculate. I never got a good answer. But it’s not different from the many times that we see problems and then Congress fails to act or whatever. But, you know, you can’t give up because what’s the alternative? The alternative is just to let the corruption fester and have more of it. I think it behooves the Senate not just to require a code of conduct for the Supreme Court. Listen, if they don’t understand about ethics, they have no business being there. They don’t need to have it written out. I mean, they don’t. But the issue is really will they investigate? Will they investigate Thomas thoroughly? Will they insist on finishing the investigation on Brett Kavanaugh? Will they ask Gorsuch what happened? Will they ask the others what kind of funding they’ve received, quote unquote, “gifts,” what kind of benefactors do others have? And how is this warping, deeply warping our judiciary and our justice system?
Brian Beutler: It is so bizarre. I feel like the only reason I would ever want to be a member of Congress in this day and age at least, is to get my fingers into like into other people’s, you know, other office holders books and see what they were up to. Like, the investigation seems like where the fun is, but the people who get those jobs seem to decide or talk themselves into the idea that it’s not. Dick Durbin, who’s the Senate Judiciary chairman, now tried to explain his reluctance to demand testimony from Clarence Thomas by saying what I was talking about, you know, about them convincing themselves that the outcome is foreordained. He said, you know, if I send the invitation, the invitation will just be ignored. So what would you say to someone like Durbin if he’s listening?
Elizabeth Holtzman: First of all, I have enormous respect for Senator Durbin. He’s a smart guy and very decent, very honorable, very fine senator. I’d say just do your job and do it right. And people will have enormous respect for you if you do it in a fair but professional way. You’ve got to get to the truth because there’s no one else who can do it. And the truth is critical here, because think about the decisions that have been bought and sold by people like Mr. Crow and others. We don’t even know their names. That’s something that hurts every single American. If Clarence Thomas knows that he’s not going to get free planes, free trips to Indonesia that are worth $500,000, other kinds of benefits, if he changes his vote, who can resist that? [music plays]
Brian Beutler: So here’s another observation I have about how the impunity of other people gets into the heads of even good ethical people. They think there’s no point in trying to hold bad guys accountable. I think you saw that a couple of years ago after Trump. There was there was some thought that we should shore up the presidency, DOJ.
Elizabeth Holtzman: Right.
Brian Beutler: Candidate requirements. Just something like a repeat of the post-Watergate reforms, but for the post-Trump era. And then nothing like I think the House passed an ethics bill. The Senate didn’t even bother to take it up. Everything Trump exploited in 2016 and attempted again in 2020 is still there for him if he wants to try again. Is that sort of yet more of this defeatism or is there—
Elizabeth Holtzman: Well. But you have to keep trying. You know, I’ll give you I mean, I don’t know if this is a good news story, a, bad news story or whatever, but when I came to Congress, maybe because I was willing to ask tough questions, somebody came to me who was connected to the immigration Service and told me, Liz, you know, the US government has a list of Nazi war criminals living in the United States and they’re doing nothing about it. I thought the person was crazy. I mean, looked normal, he spoke normally. I said the US government is not allowing Nazi war criminals to live in the U.S. untouched. Couldn’t happen. We fought them in World War Two how could that happen? You know something? I finally asked the question of the commissioner in a public hearing, and he said, yes, we have a list, the immigration services, have a list of Nazi war crimes. So they had been here this is 1974. They had been here since for almost 30 years. Government had done nothing. But you know something? I picked up my hands and I said, I’m going to do something about it. And I did. And I worked at it. And finally we created a special unit in the Department of Justice. Department of Justice didn’t want to create a special unit over their dead bodies, but I was chair of the immigration subcommittee and I made them do it. And more than 100 Nazi war criminals were expelled from the United States, and probably thousands would have been expelled if somebody else had had the guts and the stamina to try to clear up a problem years before I did. I mean, there were many prominent members of Congress before I got there in 1973. They could have acted on it. They never did. So I why they don’t I don’t know. We need courageous people who are willing to stand up and actually willing to risk their seats if it if it comes to that, willing to ask the tough questions, willing to push, willing to try to bring about justice.
Brian Beutler: What are the levers that somebody’s sort of analogous to you in this Congress could do? I mean, the Democrats are in the minority in the House. They control the Senate. They can’t seemingly pass any legislation pertaining to ethics, at least insofar as it would, you know, affect Clarence Thomas in any way. But they they do they could, in theory, muck around with John Roberts’s appropriation for the Supreme Court or for the office of the Chief Justice in, you know, in an effort maybe to get him to take—
Elizabeth Holtzman: You can’t lower their salaries.
Brian Beutler: You can’t lower it. But can’t you tweak the resources of the body and of the—
Elizabeth Holtzman: I think what the House can try to put some pressure on the Senate. Remember, many years ago, Senate wasn’t I forget what the Senate wasn’t doing. And a number of congresswomen ran up the steps of the Senate to basically say, you’re ignoring the rights of women. It’s terrible what you’re doing. You’ve got to change. That had a huge impact. It got huge press. So, yes, if the Democrats in the House, for example, were to send a letter to the Senate calling on the Senate to start an investigation of Clarence Thomas, and as well as writing a code for the for the justices, that might have an impact. Well, why not? I mean, to sit by and say, oh, I don’t have any power, I can’t do anything. Yes, you have the power of a bully pulpit. You have people who are willing to say things. You say it. And that’s what they should do. I mean, why isn’t the Senate calling on Clarence Thomas to resign? Okay. Someone should introduce a resolution. Where is that?
Brian Beutler: Do you see any role for the power of the purse in trying to get the Supreme Court to deal with Thomas directly? Insofar as the impeachment option is in on the table.
Elizabeth Holtzman: I don’t know. I think you’re really treading close to the constitutional line. You’re not supposed to I mean, retaliate against them, certainly not with regard to their salary. I don’t know. And in a way, do you really expect John Roberts to police his colleagues? He doesn’t have the authority to do that. None of them has the authority. They’re all equals. They all have that one vote when it comes to voting on the decision. The only power that Roberts has that they don’t have is who gets to write the opinion. Okay. That’s important, but it’s not as important as the one person, one vote. That’s what they all have. So to expect Roberts himself, first of all, to prepare a code and secondly, to enforce it is totally unrealistic. What they can do is they can ask for the financial records. They can ask for. Look. Right now, Thomas’s benefactor is paying the rent or is not collecting rent from Thomas’s mother, who’s living in this house that he bought. Thomas used to pay for that, the expenses of the house and the costs of the house. I don’t know. It probably wasn’t that much money, but maybe it was five or ten or 15 or $20,000 a year. The guy’s picking up this money. Clarence didn’t even report it. I mean, I think at some point people need to say, okay, they need to investigate what the finances. You don’t have to withdraw the finances for the court. You can investigate the specific finances of the members of the Supreme Court and who they’re getting money from. Require them to report it, ask for the information. And as Ron Wyden is doing, get the information with the people who are making gifts to the court. How are they treating this as a gift, as a business expense? Doesn’t that tell you a lot? That’s a lot of information. It would help to it would help to shame if the benefactor listed those, quote unquote, “gifts” as business expenses and took a tax deduction for it. What would that say about this is not a gift—
Brian Beutler: Hearing you talk—
Elizabeth Holtzman: —this would say payoff.
Brian Beutler: Hearing you talk about this reminds me that Congress was just vindicated in its authority to request anyone’s tax returns. And that would be Ron Wyden as chair of the Finance Committee. If Harlan Crow doesn’t want to answer these questions, he can just go to the IRS, right?
Elizabeth Holtzman: Correct. He can get all that stuff. He can find out exactly how much money Crow gave, not just to Clarence Thomas, but maybe there were other justices on the court, or maybe it was lower court justices, or maybe it went in other ways and maybe there are other people who’ve gotten it. Yes, of course he can get the tax returns. They can find out exactly. Do we know that they feel that their tax returns properly, they didn’t fill out their ethical returns properly? Clarence Thomas seems to have shown as much contempt for the ethics requirements that according to this letter that was sent out by Roberts, the justices have followed the financial disclosure requirements. He shows as much contempt for the financial disclosure requirements as he has for the Constitution. Complete contempt. Well, but Congress is a way of getting the information. They could do it. They have the power. Nothing the court can do about that. That’s that’s critical. And but they have to be willing to do it. And that’s really the problem here. To what extent will they do it? I don’t know. Look at what it took to get the House of Representatives to start impeachment proceedings against Trump when the Democrats had control.
Brian Beutler: I remember reading a op ed that I think Adam Schiff wrote before the 2018 midterms, trying to say, we’re never going to impeach him since he won’t be convicted. It’s there’s no point. And I remember thinking, well, if you’re not going to impeach him, then you’re not going to investigate him, because if you investigate him [laughter] you’re going to find impeachable conduct and feel like you’re obligated to impeach him. So if you foreclose impeachment, you’re just basically saying he has carte blanche to get away with his crimes. And I was kind of aghast and spent the next year or so just pounding the table about impeachment and was, you know, thrilled. I guess it was almost what? Yeah, a year. Thrilled when they finally did it. But even when they did it, they they circumscribed it. They said we’re not going to go outside the four corners of the of the Ukraine issue.
Elizabeth Holtzman: —of the perfect phone call.
Brian Beutler: Yeah. When when in the course of their— [both speaking]
Elizabeth Holtzman: We had, when we did the impeachment of Richard Nixon. I can’t tell you how many counts and charges and issues that we were dealing with. You know, dozens, dozens. I mean, the cover up, the hush money to the burglars, the pardons to the burglars, other kinds of illegal wiretaps of breaking into Ellsberg’s psychiatrist office. I mean, issue after issue. You know, the thing that people didn’t look at was the history of how we did our impeachment. When we did the impeachment of Richard Nixon, which we were forced to do because the American people said, president can’t fire a special prosecutor with impunity. Congress, you have to act. We nobody had done an impeachment for 100 years. We weren’t exactly sure how to do it. Presidential impeachment since Andrew Johnson. And we didn’t know what was going to happen in the Senate. We didn’t even know what the rules were for impeachment. We didn’t even know what the Constitution said. I went to Harvard Law School. We never studied impeachment. I didn’t know what a high crime and misdemeanor was. We had to study the Constitution. We had to study the facts. We had to find out whether there were grounds. We didn’t know when we started whether there would be enough votes in the House Judiciary Committee to vote for impeachment. We never knew whether there were going to be enough votes in the Senate. We never even knew whether there would be enough votes in the House. We just did what we thought was right in the right way. That was what guided us. Yeah, if you’re going to say, oh, well, I’m not going to do I’m not going to start an impeachment because we don’t have the votes or we could never succeed. Well, we wouldn’t have started the Nixon impeachment that had been the case, but the American people wouldn’t let that happen. That’s what was the difference.
Brian Beutler: Okay. So last question. We are where we are. Clarence Thomas is still on the bench. Donald Trump is a big favorite to win the Republican presidential nomination so he could become president again. And I feel like those two facts alone are just kind of a plain indication that the system isn’t working as its meant to the accountability systems that we have in the country. What, in your mind, could be done to force the pendulum back in the direction of at least where powerful actors expect that, you know, they might face some accountability if they go too far?
Elizabeth Holtzman: Well, I think that if Trump is indicted, for example, by the federal government for his role in the insurrection and for his role in hiding materials at Mar-a-Lago. I think that would send a huge signal to we would be malefactors that there could be accountability. I don’t know why it’s taken so long. I mean, I think at the outset there was not the same what would you call aggressiveness, intensity about holding Trump accountable? Maybe they were just too respectful of the presidency. Maybe they were just scared of the political consequences. But the Constitution, the framers of the Constitution say explicitly that a president can be prosecuted, can be held liable at trial to the criminal law. So what are we afraid of? They thought it was okay. Hundreds of years ago, the people who framed the Constitution understood that there could be a criminal president and the failure to act because somehow the president is wholly is sacred. No, that runs counter to the Constitution. It runs counter to our democracy. People are people and they do things that are wrong or criminal, and they have to be held accountable.
Brian Beutler: Your lips to God’s ears [laughter] at least to Merrick Garland ears, anyway.
Elizabeth Holtzman: Yeah.
Brian Beutler: Congresswoman Elizabeth Holtzman, thank you for spending so much of your time with us. I really appreciate it.
Elizabeth Holtzman: Glad to do it. Thank you. [music plays]
Brian Beutler: As we were producing and scheduling this episode, another Supreme Court scandal came to light. This one involves Justice Neil Gorsuch, the Donald Trump appointee. Four years before he reached the Supreme Court, he tried and failed to sell a large piece of property in Colorado. Then, nine days after his confirmation, he found a buyer. It just happened to be the CEO of a huge law firm called Greenberg Traurig, which has business before the court. Gorsuch concealed the buyer and continued to rule in Greenberg’s cases, siding with Greenberg the overwhelming majority of the time. Congresswoman Holtzman’s admonition that we not glorify the old days just because the new days aren’t going so well is well taken. So is her your point that then, as now, what’s needed more than anything are leaders who have good instincts and a commitment to doing what’s right, even if it cuts against the culture of the House or the Senate, or some strange notion of comedy, that means Dick Durbin should stop ducking this issue. It means Senator Ron Wyden and should use his authority as Senate Finance Committee chairman to access all of the justices tax returns, as well as the tax returns of Harlan Crow. And it means Senator Richard Blumenthal should step up if Durbin does not, and use his unilateral authority as chair of the Permanent Subcommittee on Investigations to subpoena justices and insist on their testimony. We can only solve our Clarence Thomas problem with resolve like that. [music plays] Positively Dreadful is a Crooked Media production. Our executive producer is Michael Martinez. Our producer is Emma Illick-Frank. Evan Sutton mixes and edits the show each week. Our theme music is by Vasilis Fotopoulos.