Former FBI deputy chief lays out path for prosecution of Clarence Thomas

Former FBI deputy director Andrew McCabe gave tips on how to make Supreme Court Justice Clarence Thomas answer allegations about gifts received by rich donors when he joined legal analyst Allison Gill for their weekly"Jack" podcast, in which they give updates on the cases investigating former President Donald Trump.

The hosts addressed the recent complaint sent by Sens. Sheldon Whitehouse (D-RI) and Ron Wyden (D-OR) to the Department of Justice. The pair asked the DOJ to open an official investigation into Thomas over allegations he violated federal ethics and tax laws.

In a statement, they mentioned extensive reporting that Thomas accepted millions of dollars in gifts, luxury travel, and other payments from billionaire benefactors like GOP megadonor Harlan Crow, some of whom may have had financial interests before the court, at least indirectly.

"What they need to open an investigation is information that a federal crime has been committed," McCabe said of the FBI's standards.

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"There's no law or policy that prevents DOJ from doing that. In fact, they are tasked with investigating and prosecuting violations of federal law. This could easily be that. So, it would fall well within their authority to do it, but it would be very, very, very controversial."

Gill noted that if the FBI can investigate a co-equal branch of government like a member of Congress, then it certainly can do so with a member of the Supreme Court as another co-equal branch of government.

He spoke specifically about the case of Wyden and Whitehouse, who brought up questions involving Thomas' taxes. Thomas was accused of getting a loan for the motor coach, which didn't need to be paid back.

If the loan "for his luxury motor coach was forgiven, Thomas would owe taxes on the forgiveness of that loan. And if he did not, that could be a violation of the law," Gill said.

"So, the tax case is both good and bad," McCabe said. "It's a little bit tough to work through the hypothetical because of the IRS's investigative jurisdiction, which is actually statutory in nature."

Gill asked about failing to fill out the financial disclosure forms, which has happened on multiple occasions with Thomas. But McCabe said that likely wouldn't give rise to a violation of federal criminal law.

"If it were a general public corruption case, you would need an allegation that a federal justice received the money in return for making a particular judgment or taking an official act on behalf of the person who gave him money," McCabe continued.

"But again, if that information came to you ... then you would have the information necessary to meet that low threshold of having information that violates federal or criminal law has occurred or will occur."

It prompted Gill to question why the two senators would send their request for investigation directly to the Justice Department when it should probably go to the IRS investigators.

McCabe said that it is likely political or performative and that the DOJ could simply forward it to the IRS for its investigation.

Listen to the full comments on the podcast here.