The advocacy group Common Cause has found evidence that Clarence Thomas’ office appears to have lied about his participation in a retreat hosted by the Koch brothers, three years ago, and that Thomas appears to be concealing a gift from the oil billionaires, due to the conflict of interest it suggests. It now appears Thomas reported his appearance at the event, at which his office said he “made a brief stop-by”, as an all-expenses-paid four-day trip to Palm Springs.

The Koch brothers benefited directly from the Citizens United v. FEC ruling, which found that corporate interests have a right to spend as much money as they want to influence public opinion on any issue at any time, including during an election, even if that spending crowds out other voices. They were able to marshal tens of millions in secret contributions to fund “conservative” causes in the 2010 election; many allege the so-called conservative groups were just front groups for a campaign to eliminate regulation of corporate abuses.

Both Justices Thomas and Scalia have attended the Koch brothers’ retreats, which are specifically intended to instruct leading industrialists and conservative groups in how to gut federal regulatory law. And observers are now asking, as evidence mounts against them: “Why would two Supreme Court Justices attend meetings aiming to subvert public law?”

The Koch brothers’ event was described by the New York Times as bringing together “a secretive network of Republican donors”, precisely the kind of group which was behind, and which was given significant legal and political advantage, by the Citizens United ruling. In 2010, as a result of the ruling, which both Justices Scalia and Thomas backed, the Koch brothers and their political allies spent unprecedented sums on secretive groups whose campaigns spent most of the year vilifying Democrats and Democratic policies.

According to OpenSalon:

For a long time now, Charles and David Koch, America’s third and fourth richest men, have been at the center of funding right wing causes, from fighting universal health care to the funding tea party puppet-master Dick Armey. They’ve denied association with the tea party but there is video to prove otherwise. The Koch fortune comes from the company they inherited, Koch Industries, which specializes in dirty industries like oil, mining, fertilizers and ranching. They also own the logging company Georgia Pacific. They founded the Cato Institute, a conservative marketing firm masquerading as a think tank. Their father (with others) founded and funded the John Birch Society, itself a secretive anti-government cabal – it runs in the family. It’s likely that the Kochs had at least a funding role in Citizens United although no proof yet exists due to the ruling itself.

In the case of Clarence Thomas, he may be in some trouble. Although Supreme Court justices hold their positions for life, illegal activity may be grounds for impeachment. If Thomas failed to report the free trip as a gift, or lied to cover up his connection to the Koch brothers, or to withhold information from the IRS, it could nullify the Citizens United ruling and put Thomas at risk of prosecution, for corruption and abuse of office.

The group Common Cause has sent a letter to the Justice Department requesting that the alleged conflict be investigated. The letter reads, in part:

The Supreme Court’s 5-4 decision in Citizens United vs. Federal Election Commission, 130 S. Ct. 876 (2010), has had a dramatic impact, overturning prior Court precedent, ending restrictions on corporate and union political spending that had been in place since 1947, and fueling a surge in secret and independent spending in the 2010 elections. Outside groups spent more than $296 million on the 2010 Congressional midterms – a 330 percent increase over 2006 – with more than $135 million of that coming from undisclosed donors¸ according to the nonpartisan Center for Responsive Politics. Since that decision, information has come to light that raises serious questions about the impartiality of Justices Thomas and Scalia in the Citizens United case. It appears both justices have participated in political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision. With respect to Justice Thomas, there may also be an undisclosed financial conflict of interest due to his wife’s role as CEO of Liberty Central, a 501(c)(4) organization that stood to benefit from the decision and played an active role in the 2010 elections. Until these questions are resolved, public debate over allegations of bias and conflicts of interest will serve to undermine the legitimacy of the Citizens United decision and erode public confidence in the integrity of our nation’s highest court. As Attorney General, you are ideally situated to address this matter, both in the interest of justice and in the interest of your client, the Federal Election Commission. The Commission was the losing party in Citizens United, but may now have legitimate grounds to seek reconsideration. Therefore, Common Cause hereby formally requests that the Justice Department promptly investigate whether Justices Thomas and Scalia should have recused themselves from the Citizens United case under 28 U.S.C. § 455. If the Department finds sufficient grounds for disqualification of either Justice, we request that the Solicitor General file a Rule 60(b) motion with the full Supreme Court seeking to vacate the judgment.

Judges in the United States swear an oath to act impartially, and the defense used by Thomas, Scalia and other conservative justices who have involved themselves in political activity, has tended to be that their oath is proof enough of their impartiality. Now, that defense is being challenged, as evidence appears to be emerging of persistent attempts to conceal ties to not only political organizations, but to organizations and individuals with cases before the Court.

The Common Cause letter notes that “Federal law requires any United States judge – including a Supreme Court justice – to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).” Though there appears to be a clear conflict of interest for both justices in the Citizens United case, neither recused himself.

Justice Thomas has also faced criticism for not reporting his wife’s income from conservative organizations, including some that are now challenging the Affordable Care Act on Constitutional grounds. Because of his wife’s lobbying for that cause, Justice Thomas has been urged to recused himself from any case regarding the healthcare reform law that might come before the Court. He has so far declined to do so.

In fact, the questions regarding his wife’s political activities have been described as a potential “smoking gun” proving deliberate political corruption on the part of Justice Thomas. He appears to have deliberately concealed his wife’s income from right-wing political action groups. Ginni Thomas now runs Liberty Central, a 501(c)4 non-profit of the kind favored by Citizens United v. FEC, which she opened in the immediate aftermath of the ruling.

She received two contributions in the first year, both kept secret, one for $500,000. It is suspected that the Koch brothers may have provided the funding either directly or indirectly, through other groups, as a kind of payment for the vote cast by Justice Thomas in favor of their interest in the Citizens United case.

Justice Scalia’s appearance at a Republican House Tea Party caucus event in January has again raised questions about his impartiality. The entire proceedings of the event, like those of the Koch retreats, have been kept secret. The Tea Party caucus includes several members who have campaigned for the repeal of the Affordable Care Act.

It has been argued that the coincidence of personal relationships with these partisan groups and individuals, between Justices Thomas and Scalia, shows that their political dealings may cast a shadow over the entire Court, as they seem not to even limit their political activities to their own time or travels.

In 2003, CBS News reported:

Vice President Dick Cheney and Supreme Court Justice Antonin Scalia spent part of last week duck hunting together at a private camp in southern Louisiana, just three weeks after the court agreed to take up the vice president’s appeal in lawsuits over his handling of the administration’s energy task force, the Los Angeles Times says in its Saturday editions. While Scalia and Cheney are avid hunters and longtime friends, several experts in legal ethics questioned the timing of their trip and said it raised doubts about Scalia’s ability to judge the case impartially, the newspaper pointed out. But Scalia rejected that concern Friday, telling the Times, “I do not think my impartiality could reasonably be questioned.”

The hunting excursion was an unbelievable and clear sign of close personal relationship with someone who had a case pending before the Supreme Court. The trip was not paid for by Scalia. The case pending against Cheney required the release of documents relating to his secret negotiations with major interests in the energy sector, the release of which might have revealed material evidence of corruption.

It is hard to imagine how the hunting trip would not qualify as a case where “impartiality might reasonably be questioned”. The Bush administration, however, whose second-in-command was directly implicated in both the court case and the hunting trip, had no appetite for investigating whether corruption was taking place.

A corruption investigation looking into the tax reporting habits of Justices Thomas and Scalia would seem to be warranted, if for no other reason than it is already public record that they dispute the nature of the gifts they have received from interested parties. It certainly seems an ethics probe is warranted, which could result in the vacating of the Citizens United ruling and the revelation of who was party to the Cheney energy policy meetings in 2001 and whether policy was corrupted by their involvement.