Clarence Thomas should be INDICTED -- UPDATED

By Daily kos

Clarence Thomas, for the past 20 years has checked "None" under "Spouse's Non-Investment Income" on his financial disclosure forms.  That, we now know, was untrue.  The law that is the basis for the disclosure form, includes reference to possible criminal penalties under 18 U.S. Code.

Under Title 18, United States Code, Section 1001, it is a crime to:

1. knowingly and willfully;

1. make any materially false, fictitious or fraudulent statement or representation;

1. in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.

Violations are punishable by a fine and 5 to 8 years in prison.  Thomas could be charged with separate counts for each year he falsely stated that his wife had no "Non Investment Income"

The Department of Justice publishes a handbook to provide guidance to prosecutors.  The handbook details the history of 18 USC 1001 and states as follows:

Amended -  1001 will thus reach those documents that have most often been the subject of congressional false statement prosecutions, such as vouchers, payroll documents, and Ethics in Government Act (EIGA) financial disclosure forms.

This particular federal crime has been used to indict a FBI agent who failed to disclose his ownership interest in a building leased by the FBI.  From the Mississippi Criminal Defense Blog:

An FBI Agent in Oxford, Mississippi was indicted this week for making false official statements to a federal official, among other things.  The agent was the Supervisory Agent in Charge of the FBI's Oxford Resident Agency, and the indictment charges that he failed to disclose that he had a financial interest in the Oxford FBI Building since 2004, and that he was not truthful on his Confidential Financial Disclosure Report that FBI Agents are required to fill out.

I understand that the FBI agent was found not guilty on some counts and the jury hung on the remaining count(s). He was not retried.

Nonetheless it is outrageous that Clarence Thomas can get by year after year denying that his wife was being paid over $100,000/year by the Heritage Foundation and yet an FBI agen who fails to disclose on his Financial Disclosure Report gets indicted.

While earlier posts on this topic have raised the possibility of impeachment none seem to have mentioned the fact that a judge can simply be indicted and tried.  A quick search will show that a number of federal judges have been indicted, tried and convicted over the years.  

Clarence Thomas' time has come.  As a criminal defense attorney, I would have a hard time saying that he did not knowingly and willfully make false statements when he said his wife did not receive any "Non Investment Income" year after year when she was getting over $100K a year.  

UPDATE #1 1-27

I have responded to a couple of comments, but it occurs to me that perhaps I should amend this post to address some issues common to a number of comments.

First this is not an IRS issue.  It is plain and simple a false statements issue.

Second to those who argue that Justice Thomas was not required to file a financial report, the Ethics in Government Act, passed in the wake of Watergate requires a financial disclosure statement to be filed for damn near any federal employee, including Justice Thomas.

For those who argue there are no criminal penalties attached for making knowing & willful false statements on this form take a look at the language on the form itself:

NOTE:  ANY INDIVIDUAL WHO KNOWINGLY AND WILLFULLY FASIFIES OR FAILS TO FILE THIS REPORT MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 USC app 104)

While 5 USC app 104 makes this conduct a misdemeanor punishable for up to a year in prison, 18 USC 1001 is, on its face still applicable.  Take a look at the indictment against Don Young's former aide, who is awaiting trial for a violation of 18 USC 1001 for failing to report his World Series Trip if you have doubts.

While there is no doubt an argument to be made that this conduct is just a misdemeanor, take a look atUNITED STATES v. WOODWARD, 469 U.S. 105 (1985) where a person checking the "no" box on a custom form was punished both for the false statement (18 USC 1001) violation and the charge of failing to report the currency itself -- all as a result of checking the "no" box.

Personally I don't like the law, and for that matter neither does Martha Stewart who was convicted for a violation of 18 USC 1001, but it is the law and if a US Supreme Court Justice can't seem to figure it out year after year, perhaps he should suffer the consequences as so many others have.

UPDATE #2 1-27

This story has been picked up by the Guardian now. ProtectOurElections.org has recently issued a press release calling for Justice Thomas to step down and is asking the Department of Justice to prosecute him.  They have a short video on youtube of their press release.

Thanks to all of you who view this as an important issue, despite the fact that it has been predominantly overlooked by the mainstream media.  This Justice needs to go!