Clarence Thomas & the Koch Network: ProPublica Reveals SCOTUS Justice Attended Fundraising Events
Written by GRB on 26/09/2023
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: The independent news outlet ProPublica has published another damning investigation in its series on the connections between Supreme Court Justice Clarence Thomas and donors who may be impacted by cases that come before his court, that’s the nation’s highest court. The latest story concerns the libertarian billionaires Charles and David Koch, who have spent millions on conservative causes and funneled vast donations into Republican campaigns. The report is headlined “Clarence Thomas Secretly Participated in Koch Network Donor Events” and follows up on past reports that Clarence Thomas secretly accepted luxury trips from GOP donor Harlan Crow and many others.
In the new piece, ProPublica reports Justice Thomas has attended Koch donor events at least twice over the years, and, quote, “That puts Thomas in the extraordinary position of having served as a fundraising draw for a network that has brought cases before the Supreme Court, including one of the most closely watched of the upcoming term,” unquote. The pending Supreme Court case challenges a precedent-setting case known as Chevron and seeks to limit the power of federal agencies to issue regulations in areas ranging from the environment to labor rights to consumer protection. David Koch died in 2019. His brother, Charles Koch, did not respond to the new report, but a Koch network spokesperson told ProPublica, quote, “Thomas wasn’t present for fundraising conversations. … The idea that attending a couple events to promote a book or give dinner remarks, as all the justices do, could somehow be undue influence just doesn’t hold water,” the spokesperson said.
For more on the details of this new investigation, including how Supreme Court Justice Clarence Thomas was at the Bohemian Grove, a secretive all-men’s retreat in Northern California, with David Koch and filmmaker Ken Burns, among others, we’re joined by Justin Elliott, reporter for ProPublica.
Welcome back, Justin, to Democracy Now! Lay out this latest exposé.
JUSTIN ELLIOTT: Sure. So, what we found is that Justice Thomas, as you mentioned, has attended and participated in multiple Koch donor summits. So, essentially, the Koch brothers founded this powerful network of political groups, spends hundreds of millions of dollars on elections, also employs lawyers who bring cases to the courts. And every January, they have a big donor summit out in Palm Springs, California, where Charles Koch has a mansion. Other wealthy businesspeople fly out there. They have a meeting. They sort of review what they’ve been doing. It’s essentially their big marquee fundraising event of the year. And that’s the event that we found Justice Thomas had made undisclosed trips to, most recently in January 2018. We found the justice was flown out there on a private jet, gave a talk to a small dinner of high-dollar Koch donors, people that gave over a million dollars. And none of this was disclosed as it should have been on his annual financial disclosures.
AMY GOODMAN: I wanted to get your response to — it’s rare to get these justices commenting like this — Supreme Court Justice Elena Kagan giving an address at Notre Dame Law School on Friday, after your new report on Justice Thomas came out. She was asked if the high court needs a code of ethics. She didn’t mention Justice Thomas by name in her response.
JUSTICE ELENA KAGAN: Right now we’re in a situation where we’ve committed to following certain kinds of ethical rules respecting judges but have said we will only be guided by others. So, you know, we’ve committed to following the gift rules that other judges follow and the outside income rules that other judges follow. But other judges have a very extensive code of ethics that governs everything that they do. And there’s been some concern, and I think it’s legitimate concern, that not — that the Supreme Court is an unusual kind of court, in certain respects, and that some of the rules do not fit quite as well at the Supreme Court level than they do at the level of lower courts. But, of course, what we could do is just adapt the code of conduct that the other court systems have in order to reflect those slight or certain differences. And I think it would be a good thing for the court to do that.
AMY GOODMAN: So, that’s Supreme Court Justice Elena Kagan. Justin Elliott, your response? How significant is what she’s saying, and how many congressmembers agree with her? I want to mention that Brett Kavanaugh, the other Supreme Court justice, recently said the court may, quote, “soon” address a code of ethics on the high court, and Chief Justice John Roberts in May called ethics scandals at the court a, quote, “issue of concern” and said justices were, quote, “continuing to look at things.” Your response to all this?
JUSTIN ELLIOTT: Yeah, so, first of all, just to explain, I mean, as Justice Kagan mentioned, all other federal judges below the Supreme Court level have extensive rules, a code of ethics, advisory opinions. You know, we actually quoted a retired federal judge, a George W. Bush appointee, in our new story who said that if he had gone to a Koch donor summit, there would have been a disciplinary proceeding. And the reason for that is lower court judges are not supposed to be involved in either political events or fundraising, and this Koch donor summit is arguably both of those things. But as Justice Kagan said, those rules don’t apply to the Supreme Court.
I think [inaudible] is significant, although I will note that they’ve been talking about adopting some sort of formal rules for at least five or six years now, and the reporting on that is that the court is looking for unanimity among the nine justices and apparently been having trouble getting that. So I think it’s really something that if they adopt any rules, we’ll really have to take a close look a them to see if there’s any teeth or if it’s just sort of abstractions about the importance of being independent and acting [inaudible].
AMY GOODMAN: We just showed a picture of Ken Burns, David Koch, who has since died, and Justice Clarence Thomas. Can you talk about that gathering?
JUSTIN ELLIOTT: Sure. So, another part of this story connects back to our previous reporting on Harlan Crow, who’s a Republican billionaire political donor out of Dallas, who has been, essentially, subsidizing Justice Thomas’s life for many decades, bringing him on expensive vacations around the world, paying tuition for relatives and other things. What we found now is that Harlan Crow has been taking Justice Thomas on more trips over the years, previously undisclosed trips, out to the Bohemian Grove, which, if folks haven’t heard of it, is this all-men’s retreat, takes place every July in a redwood forest in Sonoma County, where essentially political and corporate elites meet. You have to be a member of this club to get in. Famously, Henry Kissinger has been going for many decades.
And what we found is that Justice Thomas has been going there for years, is a regular there with Harlan Crow, and he stays in this camp, which is essentially like a fraternity with a couple dozen men. And other members of that camp include Charles and David Koch. It’s called Midway. And what we were told, talking to many people that have spent time there over the years, is that the justice developed this relationship and bond with the Kochs on these trips to the Bohemian Grove, which really answers a question, in part, that we’ve been wondering about, which is: What is going on on all these trips and vacations that Harlan Crow is taking Justice Thomas on? It turns out part of the answer is, you know, he’s spending time with people like the Kochs, who have active interest and, in fact, cases at the Supreme Court.
AMY GOODMAN: So, if you can talk about a case that’s coming up? I’m looking at one article in The Hill, “Chevron case: Supreme Court could take sledgehammer to agency power.” Explain what this case is all about and why that’s called Chevron.
JUSTIN ELLIOTT: Yeah, so, it takes its name from a previous Supreme Court case, a landmark case back in the mid-1980s called Chevron. And this is something that most people haven’t heard of — I hadn’t heard of it until a few months ago — but turns out to be incredibly important. It’s one of the most cited Supreme Court cases of recent decades. And essentially, what it says is that —
AMY GOODMAN: And it’s really Chevron v. NRDC, right? The Natural Resources Defense Council.
JUSTIN ELLIOTT: That’s right. And essentially, what it says is that judges and courts should defer to federal agencies, like the EPA or the FDA or the Department of Labor, when those agencies come up with regulations. So it really insulates the agencies from challenges from business and others when federal agencies issue a regulation that somebody might not like. And for years now, the Koch political network has had this ruling in its sights.
And the case in the upcoming term, that case is called Loper Bright, and it was actually brought by Koch network lawyers who are representing the plaintiffs. They brought it in the lower court and have shepherded it to the Supreme Court. And a lot of legal observers think that the Supreme Court is — with the new conservative supermajority, is going to use this case as the opportunity to overturn this Chevron precedent back from the 1980s, which would — you know, people we talked to said it would just have huge ramifications for the executive branch’s ability to issue regulations in basically every part of American life.
AMY GOODMAN: And explain exactly how it would benefit the Koch brothers, whose fundraisers, apparently, you exposed, Justice Thomas attended and was the draw for.
JUSTIN ELLIOTT: Yeah, well, ideologically, of course, the Kochs are libertarians, you know, going back many decades. We note in our story that David Koch actually ran for vice president on the Libertarian Party ticket back in 1980, and the platform called for just abolishing the EPA, Department of Energy, U.S. Postal Service, a whole range of federal agencies. But, you know, the Kochs have run, I believe, the largest or second-largest private company in the country that operates in a lot of highly regulated sectors, particularly energy, oil, gas, that sort of thing, and for years have been bristling at government regulations, challenging regulations in court.
And if this Chevron doctrine is overturned by the Supreme Court, it’s going to make it much, much easier to challenge a regulation if you, as a company, don’t like it. So, it’s a type of thing that it’s not going to be like the Dobbs decision, where abortion rights are taken away overnight, but it can affect vast numbers of regulations going forward, basically in any area you can conceive of.
AMY GOODMAN: Now, Justice Thomas has flipped on Chevron?
JUSTIN ELLIOTT: Yeah, the other really striking thing about this — and we still don’t really have all the answers — is that Justice Thomas, 20 years ago, was a supporter of Chevron, wrote decisions citing it, expanding it, actually. And then, in the last few years, culminating in 2020, he came out in a written opinion saying, “Actually, I’ve changed my mind, and Chevron is unconstitutional, and we should overturn it.” This is extremely unusual, especially for Justice Thomas, who has a reputation as being sort of stubbornly independent and unmovable in his views. Now, to be clear, we don’t know that this is related to his relationship with the Kochs, but it’s something that you almost never see. In fact, I can’t think of another example where Justice Thomas has done a full 180 turn on an issue. So, that’s part of the backdrop here.
AMY GOODMAN: And Leonard Leo, the Federalist Society leader, said in a statement to you, to ProPublica, quote, “Justice Thomas attends events all over the country, as do all the Justices, and I was privileged to join him. … All the necessary due diligence was performed to ensure the Justice’s attendance at the events was compliant with all ethics requirements.” Your response to that? And then, just summarize. I mean, ProPublica has published one story after another. One, would Clarence Thomas be recusing himself? And where these stories — it’s not only Harlan Crow. It’s not only the Koch brothers. You also had the piece in between talking about other billionaires subsidizing his vacations, to the tune of millions of dollars.
JUSTIN ELLIOTT: Yeah, well, in terms of the recusal, it’s another thing about the Supreme Court. The recusal decisions are made entirely by each justice him or herself. So, Chairman Durbin of the Senate Judiciary Committee called on Friday for Justice Thomas to recuse himself from this Loper Bright case that the Koch network has brought to the court. Justice Thomas hasn’t responded yet that I’ve seen.
You know, in terms of where the stories are going, we’re still reporting on the entire Supreme Court. And if anyone out there knows anything, please get in touch.
But, you know, I think — and to Leonard Leo’s statement, just briefly, that mentioned ethical requirements being met, they did not elaborate on that, and everyone we’ve talked to said that ethical requirements were not met. In particular, being flown out to Palm Springs on a private jet paid for by somebody else apparently is something that you just have to disclose, and Justice Thomas did not here.
AMY GOODMAN: What else are you working on, Justin?
JUSTIN ELLIOTT: Can’t talk about what’s next, but still on the Supreme Court beat with my colleagues. So, we’re still going on it.
AMY GOODMAN: Well, I want to thank you so much for being with us, Justin Elliott, reporter for ProPublica, co-wrote their new report headlined “Clarence Thomas Secretly Participated in Koch Network Donor Events.” And just this interesting point, a piece in The Guardian, “Workers at Bohemian Grove, one of the most elite and secretive clubs in the US, have filed a lawsuit alleging numerous unfair labor practices, including 16-hour workdays without breaks, and a failure to pay overtime and minimum wages to the workers.”
Well, next up, New Jersey Democratic Senator Robert Menendez has been indicted, along with his wife, for allegedly accepting large bribes to benefit the Egyptian government. We’ll go to Cairo, Egypt, and to New Jersey for the latest. Stay with us.