ProPublica describes itself as “an independent, nonprofit newsroom that produces investigative journalism with moral force.” It promises “deep-dive reporting” dedicated to “exposing corruption, informing the public about complex issues, and using the power of investigative journalism to spur reform.”
Give ProPublica credit for admitting its journalism has an agenda. So does mine, as the word “opinion” atop this page should make clear. But ProPublica’s acknowledgment that it’s in the opinion business doesn’t excuse it from the obligation to report facts accurately, carefully and thoroughly.
ProPublica has at least three reporters working the Clarence Thomas beat—Justin Elliott, Joshua Kaplan and Alex Mierjeski. Their
story, published last Thursday, is titled “Billionaire Harlan Crow Bought Property From Clarence Thomas. The Justice Didn’t Disclose the Deal.” The troika write that the lack of disclosure “appears to be a violation of the law, four ethics law experts told ProPublica.” That statement is equivocal because it’s a legal theory based on incomplete facts. Justice Thomas didn’t respond to ProPublica’s questions or to mine.
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But my review of Justice Thomas’s disclosures and other documents convinces me that any failure to disclose was an honest mistake. On all other matters involving his scanty real-estate inheritance, he followed the
Filing Instructions for Judicial Officers and Employees, prepared by the Committee on Financial Disclosures of the Administrative Office of the U.S. Courts. Those instructions don’t make clear the statutory obligation to disclose the 2014 transaction.
Further, the ProPublica troika made a sloppy reporting error, the effect of which is to cast Justice Thomas’s disclosures in a falsely unfavorable light—to make them look shambolic or perhaps even dishonest when in fact they followed the filing instructions without fail.
The reporters’ error involves a confusion about what Justice Thomas
did disclose. “By the early 2000s,” ProPublica reports, “he had stopped listing specific addresses of property he owned in his disclosures. But he continued to report holding a one-third interest in what he described as ‘rental property at ## 1, 2, & 3’ in Savannah.” It’s worth noting—ProPublica doesn’t—that the filing instructions (on page 32) prescribe disclosing rental properties in precisely this manner.
The story continues: “Two of the houses were torn down around 2010, according to property records and a footnote in Thomas’ annual disclosure archived by
Free Law Project.” That footnote in Justice Thomas’s
2010 disclosure states in full: “Part VII, Line 2 - Two of the Georgia rental properties have been torn down. The only remaining property is an old house in Liberty County.”
Liberty County is where our journey began, but the ProPublica troika somehow missed it on the map. Their story leads the reader to think that the “remaining property” was the Savannah house where Justice Thomas’s mother lived. A Friday
letter from the Center for Responsibility and Ethics in Washington—co-signed by Virginia Canter, the first of ProPublica’s “four ethics experts”—expressly says so and accuses Justice Thomas of deceptively disclosing (rather than failing to disclose) the property’s disposition.
The footnote makes clear that this is wrong. There’s a fourth property. Justice Thomas’s
2009 disclosure listed three rental properties in “Sav., GA.” Beginning in 2010, he listed only one, in “Liberty Cty, GA.” Savannah is in Chatham County, not Liberty. But Liberty County is in the Savannah area, roughly a 45-minute drive from the city. For someone living hundreds of miles away, it would have been reasonable to describe the three rental properties collectively as being “in Savannah.”
