According to an excerpt in Talk of his forthcoming book, Blinded by the Right, David Brock admits to using information provided by Justice Clarence Thomas to threaten a Thomas detractor into recanting true statements. Brock writes that he was on deadline to review Strange Justice, a 1994 book about Anita Hill, and was desperate to discredit a witness–Kaye Savage–who had maligned Thomas in the book. Brock says of Thomas, “Knowing I was at work on the review, Thomas passed along, through [a White House lawyer] unverified embarrassing personal information about his friend Savage that Thomas claimed had been raised against her in a divorce proceeding.” Brock then met with Savage and demanded a retraction, or he would “blacken her name, just as I had done to every other woman who had impugned Thomas’ reputation.” Savage immediately faxed the retraction.
Putting aside the question of whether one might ever believe a known liar who insists he’s not lying now, the question remains: If Brock is telling the truth, was Clarence Thomas an accessory to blackmail?
Going strictly on the plain meaning of the District of Columbia blackmail statute, it looks like it. D.C. Code § 22-3852 provides that:
a) A person commits the offense of blackmail, if, with intent to obtain property of another or to cause another to do or refrain from doing any act, that person threatens:
1) To accuse any person of a crime;
2) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or
3) To impair the reputation of any person, including a deceased person.
However, the truth is that Brock himself blackmailed Savage, and it’s unclear from his account whether Thomas provided the details about Savage with the intent to back her off or just to enrich Brock’s book review. Brock probably lets Thomas off the hook when he qualifies Thomas’ actions: “Though I had no reason to think that the dirt on Savage amounted to more than an attempt by Thomas to smear a witness against him, I called Savage.” In other words, Thomas doesn’t appear to have expressly passed along the dirt in order to force Savage to recant. That appears to have been Brock’s idea alone.
The D.C. blackmail provision carries a fine of not more than $1,000 or not more than 5 years imprisonment, or both. However, blackmail is one of those non-crimes that would almost never be prosecuted unless as a part of some larger criminal enterprise, like racketeering or bribery. So even if the offenders weren’t a Supreme Court justice and a recovering conservative, the chances of charges being brought in a one-time personal case like this are close to nothing. (In any case, the statute of limitation in D.C. is six years absent a fraud claim, which renders the possibility of any prosecution moot.)
Also interesting: Since the Supreme Court has wholly immunized itself from complaints or peer review and has exempted itself from the Code of Judicial Conduct, there is also no mechanism for disciplining errant justices. If these charges had been made about any other federal judge, judicial canons and codes might require further investigation. [Clarification, June 28: Supreme Court justices can be indicted and/or impeached for federal crimes; they are simply immune from discipline for misconduct that doesn’t rise to that level.]
Photograph of Clarence Thomas on the Slate Table of Contents from STR/Reuters.