[Thomas has attended at least two Koch donor summits, putting him
in the extraordinary position of having helped a political network
that has brought multiple cases before the Supreme Court. ]
[[link removed]]

CLARENCE THOMAS SECRETLY PARTICIPATED IN KOCH NETWORK DONOR EVENTS  
[[link removed]]


 

Joshua Kaplan, Justin Elliott and Alex Mierjeski
September 22, 2023
ProPublica
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ Thomas has attended at least two Koch donor summits, putting him in
the extraordinary position of having helped a political network that
has brought multiple cases before the Supreme Court. _

Supreme Court Justice Clarence Thomas was at the Bohemian Grove, a
secretive all-men’s retreat in Northern California, with billionaire
industrialist David Koch, right, and Ken Burns, whose films Koch has
financially supported, Credit: Obtained by ProPublica

 

On Jan. 25, 2018, dozens of private jets descended on Palm Springs
International Airport. Some of the richest people in the country were
arriving for the annual winter donor summit of the Koch network, the
political organization founded by libertarian billionaires Charles and
David Koch. A long weekend of strategizing, relaxation in the
California sun and high-dollar fundraising lay ahead.

Just after 6 p.m., a Gulfstream G200 jet touched down on the tarmac.
One of the Koch network’s most powerful allies was on board: Supreme
Court Justice Clarence Thomas.

During the summit, the justice went to a private dinner for the
network’s donors. Thomas has attended Koch donor events at least
twice over the years, according to interviews with three former
network employees and one major donor. The justice was brought in to
speak, staffers said, in the hopes that such access would encourage
donors to continue giving.

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.

Thomas never reported the 2018 flight to Palm Springs on his
annual financial disclosure form
[[link removed]],
an apparent violation of federal law requiring justices to report most
gifts. A Koch network spokesperson said the network did not pay for
the private jet. Since Thomas didn’t disclose it, it’s not clear
who did pay.

Thomas’ involvement in the events is part of a yearslong, personal
relationship with the Koch brothers that has remained almost entirely
out of public view. It developed over years of trips to the Bohemian
Grove, a secretive all-men’s retreat in Northern California. Thomas
has been a regular at the Grove for two decades, where he stayed in a
small camp with real estate billionaire Harlan Crow and the Kochs,
according to records and people who’ve spent time with him there.

A spokesperson for the Koch network, formally known as Stand Together,
did not answer detailed questions about his role at the Palm Springs
events but said, “Thomas wasn’t present for fundraising
conversations.”

Get in Touch

ProPublica plans to continue reporting on the judiciary. If you have
information about the Supreme Court, please get in touch. Josh Kaplan
can be reached by email at [email protected]
[[link removed]] and
by Signal or WhatsApp at 734-834-9383. Justin Elliott can be reached
by email at [email protected]
[[link removed]] or
by Signal or WhatsApp at 774-826-6240.

“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 in a
statement
[[link removed]].

“All of the sitting Justices and many who came before them have
contributed to the national dialogue in speeches, book tours, and
social gatherings,” the statement added. “Our events are no
different. To claim otherwise is false.”

In a series of stories this year, ProPublica reported that Thomas
has accepted undisclosed luxury travel from Crow
[[link removed]] and
a coterie of other ultrawealthy men
[[link removed]].
Crow also purchased Thomas’ mother’s home
[[link removed]] and paid
private school tuition
[[link removed]] for
the child Thomas was raising as his son. Thomas has said little in
response. In a statement earlier this year, he said that Crow is a
close friend whom he has joined on “family trips.”
[[link removed]] He
has also argued that he was not required to disclose the free
vacations. Thomas did not respond to questions for this story.

The code of conduct
[[link removed]] for
the federal judiciary lays out rules designed to preserve judges’
impartiality and independence, which it calls “indispensable to
justice in our society.” The code specifically prohibits both
political activity and participation in fundraising. Judges are
advised
[[link removed]],
for instance, not to “associate themselves” with any group
“publicly identified with controversial legal, social, or political
positions.”

But the code of conduct only applies to the lower courts. At the
Supreme Court, justices decide what’s appropriate for themselves.

“I can’t imagine — it takes my breath away, frankly — that he
would go to a Koch network event for donors,” said John E. Jones
III, a retired federal judge appointed by President George W. Bush.
Jones said that if he had gone to a Koch summit as a district court
judge, “I’d have gotten a letter that would’ve commenced a
disciplinary proceeding.”

“What you’re seeing is a slow creep toward unethical behavior. Do
it if you can get away with it,” Jones said.

The Koch network is among the largest and most influential political
organizations of the last half century, and it’s underwritten a
far-reaching campaign to influence the course of American law. In a
case the Supreme Court will hear this coming term, the justices could
give the network a historic victory: limiting federal agencies’
power to issue regulations in areas ranging from the environment to
labor rights to consumer protection. After shepherding the case to the
court, Koch network staff attorneys are now asking the justices
[[link removed]] to
overturn a decades-old precedent. (Thomas used to support the
precedent but flipped his position
[[link removed]] in
recent years.)

Two years ago, one of the network’s groups was the plaintiff
[[link removed]] in
another Supreme Court case, which was about nonprofits’ ability to
keep their donors secret. In that case, Thomas sided with the 6-3
conservative majority in the Koch group’s favor.

Charles Koch did not respond to detailed questions for this story.
David Koch died in 2019.

The Koch network is an overlapping set of nonprofits perhaps best
known for its work
[[link removed]] helping
cultivate the Tea Party movement in the Obama years. Recently
rebranded as Stand Together, the network includes the powerful
Americans for Prosperity Action, which spent over $65 million
supporting Republican candidates in the last election cycle.

Though Charles Koch is one of the 25 richest people in the world,
worth an estimated $64 billion
[[link removed]], he
raises money from other wealthy people to amplify the network’s
reach. The network brought in at least $700 million in 2021, the most
recent year for which data is available. It has more than 1,000
employees who, on paper, work for different groups.

But for all its complexity, the network is a centralized operation,
staffers said. Many of the groups occupy the same buildings in
Arlington, Virginia, and share leadership and often staff. Many of the
donations go into a central pot, from which hundreds of millions of
dollars are disbursed to the smaller groups focused on various
political and social concerns, according to tax filings and former
employees.

For decades, the Kochs have held deep antipathy to government
regulation. When Charles Koch’s brother David ran for vice president
on the Libertarian Party ticket in 1980, the party platform called for
abolishing the Environmental Protection Agency, the Department of
Energy and the Food and Drug Administration.

Every winter, the network holds its marquee fundraising event in the
Coachella Valley in Southern California. Hundreds of donors fly in to
learn how their money is being spent and plan for the coming year.
Former staffers describe an emphasis on preventing leaks that bordered
on obsession. The network often rents out an entire hotel for the
event, keeping out eavesdroppers. Documents left behind are
methodically shredded. One recent attendee recalled Koch security
staff in a golf cart escorting their Uber driver out of the hotel to
make sure he left. The former staffers spoke on the condition of
anonymity because they feared retaliation.

To score an invite to the summit, donors typically have to give at
least $100,000 a year. Those who give in the millions receive special
treatment, including dinners with Charles Koch and high-profile
guests. Doling out access to powerful public officials was seen as a
potent fundraising strategy, former staffers said. The dinners’
purpose was “giving donors access and giving them a reason to come
or to continue to come in the future,” a former Koch network
executive told ProPublica.

At the 2018 Koch donor summit in Palm Springs, California, a speaker
touted the network’s accomplishments defeating taxes and government
regulations. Credit: via Facebook

Thomas has attended at least one of the dinners for top-tier donors,
according to a donor who attended and a former high-level network
staffer.

“These donors found it fascinating,” said another former senior
employee, recounting a Thomas appearance at one summit where the
justice discussed his judicial philosophy. “Donors want to feel
special. They want to feel on the inside.”

A former fundraising staffer for the Koch network said the
organization’s relationship with Thomas was considered a valuable
asset: “Offering a high-level donor the experience of meeting with
someone like that — that’s huge.”

Many details about Thomas’ role at the summits, including the
specifics of his remarks, remain unclear. The network spokesperson
declined to answer if Thomas’ appearances were ever tied to a
specific initiative or program.

Thomas’ appearances were arranged with the help of Leonard Leo
[[link removed]],
the Federalist Society leader, according to the former senior network
employee. “Leonard was the conduit who would get him,” the former
employee said. During one summit, Thomas gave a talk with Leo in an
interview format, the donor recalled.

“Justice Thomas attends events all over the country, as do all the
Justices, and I was privileged to join him,” Leo said in a
statement
[[link removed]] in
response to questions about the Koch donor events. “All the
necessary due diligence was performed to ensure the Justice’s
attendance at the events was compliant with all ethics
requirements.”

While attending the donor events would likely violate the lower
courts’ prohibition on fundraising, experts said, the Supreme Court
has a narrow internal definition
[[link removed]] of
a fundraiser: an event that raises more money than it costs or where
attendees are explicitly asked for money while the event’s
happening.

On the Thursday before the January 2018 summit in Palm Springs, Thomas
flew there on a chartered private jet, according to records reviewed
by ProPublica. Four days later, the plane flew to an airport outside
Denver, where Thomas appeared at a ceremony honoring his former clerk,
federal Judge Allison Eid. The next day, it flew back to northern
Virginia where Thomas lives.

Thomas’ financial disclosure for that year
[[link removed]] contains
two speaking engagements: one in New York City and another at a
Federalist Society conference in Texas. His trip to the Koch event in
California is not on the form.

Thomas’ 2018 disclosure form did not include his trip to the Koch
donor summit in Palm Springs. Credit: via the Free Law Project

For the event that year, the Koch network rented out the Renaissance
Esmeralda Resort and Spa. On the main stage, donors heard from Hall of
Fame NFL cornerback Deion Sanders, who was working with the Kochs on
anti-poverty programs in Dallas. Another speaker delivered a report
card on the group’s political wins large and small: “repealed
voter-approved donor disclosure initiative”; “retraction of mining
& environmental overreach”; “stopped Albuquerque paid sick leave
mandate.”

During the event, the group announced a new initiative
[[link removed]] focused
on getting conservatives on the Supreme Court and the federal bench.
The network, which had already given millions of dollars to Leo’s
Federalist Society, planned to mobilize its activists and buy
advertisements to push senators to vote for President Donald Trump’s
judicial nominees. They appointed a former employee of Ginni Thomas,
the justice’s wife, to lead the effort.

The first glimpse of Thomas’ connection to the network came more
than a decade ago. In 2010, reporters
[[link removed]] obtained
an invitation
[[link removed]] sent
to potential Koch donors that mentioned Thomas had been “featured”
at one of the network’s previous summits.

After critics called for more information about Thomas’ attendance,
the Supreme Court press office downplayed the episode. A court
spokesperson acknowledged Thomas had been in the Palm Springs area
during the Kochs’ January 2008 summit. However, she said he was
there to talk about his memoir at a Federalist Society dinner that was
separate from the donor summit but was also sponsored by Charles Koch.
She added that Thomas made a “brief drop-by
[[link removed]]”
at the network summit that year but said he “was not a
participant.” (Thomas disclosed
[[link removed]] the
2008 Palm Springs trip as a Federalist Society speech.)

In the 15 years since, the Koch network has left a deep imprint on
American society. Its advocacy is credited with helping stamp out
Republican Party support for combating climate change, once an issue
that drew bipartisan concern. The “full weight of the network
[[link removed]]”
was thrown behind passing the 2017 Trump tax cut, securing a windfall
[[link removed]] for the
Kochs and their donors. And the upcoming Supreme Court term could
bring the network a victory it has pursued for years: overturning a
major legal precedent known as Chevron.

While most Americans aren’t familiar with the 1984 case Chevron v.
NRDC, it’s one of the Supreme Court’s most-cited decisions. Legal
scholars sometimes mention it in the same breath as Brown v. Board of
Education and Roe v. Wade. In essence, Chevron is about government
agencies’ ability to issue regulations. After a law is enacted,
it’s generally up to agencies across the government to make detailed
rules putting it into effect. The Chevron decision said courts should
be hesitant to second-guess the agencies’ determinations. In the
years that followed, judges cited Chevron in upholding rules that
protect endangered species, speed up the approval process for new
cellphone towers and grant benefits to coal miners suffering from
black lung.

The Koch network has challenged Chevron
[[link removed]] in
the courts and its lobbyists have pushed Congress to pass a law
nullifying the decision. It has also provided millions of dollars
[[link removed]] in
grants to law professors making the case to overturn it.

The network’s position has become increasingly popular in recent
years. Once broadly supported by academics and judges on the right,
Chevron is now anathema to many in the conservative legal movement.
And there’s no more prominent convert than Thomas.

In 2005, Thomas wrote the majority opinion in a case
[[link removed]] that expanded Chevron’s
protections for government agencies. Ten years later, he was openly
questioning the doctrine. Then in 2020, Thomas renounced his own
earlier decision
[[link removed]],
writing that he’d determined the doctrine is unconstitutional after
all — a rare reversal for a justice with a reputation for being
unmovable in his views.

By last year, Koch network strategists sensed that victory could be at
hand. During an internal briefing for network staff, Jorge Lima, a
senior vice president at Americans for Prosperity, said the Supreme
Court seemed primed to radically change its approach to the issue. The
network was trying to find cases that could bring about major changes
in the law, according to a video of the meeting obtained by the
watchdog group Documented. “We’re doubling down on this
strategy,” Lima told the crowd.

Several months later, the Supreme Court announced it would take up a
case, Loper Bright Enterprises v. Raimondo
[[link removed]],
in which Koch network staff attorneys represent the plaintiffs. If
Thomas and his colleagues side with them this coming term, Chevron
will be overturned once and for all.

Without Chevron, “any place you would need regulation to address a
pressing social problem, it’s going to be more costly to get it,
harder to implement it and it’s not going to go as far,” said Noah
Rosenblum, a professor at New York University School of Law.

“​​Loper Bright is a case seeking to restore one of the core
tenets of our democracy: that Congress, not the administrative agency,
makes the laws,” the Koch network spokesperson said
[[link removed]].

Ethics experts said Thomas’ undisclosed ties to the Koch network
could call his impartiality in the case into doubt. This sort of
potential conflict is why the judiciary has rules against both
political activity and fundraising, they said. “Parties litigating
in the court before Justice Thomas don’t know the extent of
Thomas’ relationship with the parties on the other side,” said
James Sample, a Hofstra University law professor who studies judicial
ethics. “You have to be pretty cynical to not think that’s a
problem.”

The Supreme Court itself said in a recent statement to The Associated
Press
[[link removed]] that
“justices exercise caution in attending events that might be
described as political in nature.” But unlike with lower court
judges, there is no formal oversight of the justices.

Two decades ago, Justice Ruth Bader Ginsburg delivered the opening
remarks at a lecture cosponsored by the NOW Legal Defense and
Education Fund, a women’s rights group that filed
friend-of-the-court briefs at the Supreme Court. It was a public event
co-sponsored by the New York City Bar Association. But some
judicial ethics experts criticized
[[link removed]] the
justice for affiliating herself with an advocacy group.

Thirteen Republican lawmakers, including Mike Pence and Marsha
Blackburn, who now sits on the Senate Judiciary Committee, went
further, calling on Ginsburg
[[link removed]] to
recuse herself from any future cases related to abortion. The justice
brushed off the criticism: “I think and thought and still think
it’s a lovely thing,” she said of the lecture series. (Ginsburg
died in 2020.)

Charles and David Koch’s access to Thomas has gone well beyond his
participation in their donor events. For years, the brothers had
opportunities to meet privately with Thomas thanks to the justice’s
regular trips to the Bohemian Grove, an all-male retreat that attracts
some of the nation’s most influential corporate and political
figures. Thomas has been a regular at the Grove for 25 years as Harlan
Crow’s guest, according to internal documents and interviews with
dozens of members, other guests and workers at the retreat.

Charles Koch at the Grove. His hat features the club’s owl
insignia. Credit: Obtained by ProPublica

“What we’re seeing emerge is someone who is living his
professional life in a way that’s seeing these extrajudicial
opportunities as a perk of the office,” said Charles Geyh, a
judicial ethics expert at Indiana University law school. Judges can
have social lives, he said, and there are no clear lines for when a
social gathering could pose a problem. But the confluence of powerful
political actors and undisclosed gifts puts Thomas’ trips far
outside the norm for judges’ conduct, Geyh said: “There’s a
culture of impartiality that’s really at risk here.”

The Grove is an exclusive, two-week party held in the Sonoma County
redwoods every July. A member or his guest can wander from the
Grove’s shooting range to a lecture by Blackwater founder Erik
Prince, or from a mint julep party to a performance by the Grove’s
symphony orchestra. Wine, sometimes at $500 a bottle, flows freely,
and late at night, members consume clam chowder and chili by the
gallon. More than one attendee recalled walking outside in the morning
to find a former cabinet secretary who fell asleep drunk in the grass.

There’s a saying among the Bohemians, as the club’s members call
themselves: The only place you should be publicly associated with the
Grove is in your obituary. That privacy is paramount, members said, in
part to allow the powerful to speak freely — and party — without
worrying about showing up in the press. Only designated photographers
are allowed to take pictures. Cellphones are strictly forbidden.

Members typically must pay
[[link removed]] thousands
of dollars to bring a guest. Several people ProPublica spoke to said
that before the pandemic, they saw Thomas there just about every year.
ProPublica was able to confirm six trips Thomas took to the retreat
that he didn’t disclose. Flight records suggest Crow has repeatedly
dispatched his private jet to Virginia to pick up Thomas and ferry him
to the Sonoma County airport and back, usually for a long weekend in
the middle of the Grove festival.

“I was taken with how comfortable he was in that environment and how
popular,” a person who stayed in the same lodge as Thomas one year
said. “He holds court there.”

In response to questions about his travel to the Grove with Thomas,
Crow said Thomas is “a man of incredible integrity” and that
he’s never heard the justice “discuss pending legal matters with
anyone.” Neither Crow nor Thomas responded to questions about
whether the justice reimbursed him for the trips.

(Other justices have Grove connections too. The mid-20th-century Chief
Justice Earl Warren was a member. Among modern justices, Thomas
appears to have been the most frequent guest. Justice Antonin Scalia,
who died in 2016, attended many years ago. Justice Stephen Breyer went
in 2006; he told ProPublica he was the guest of his brother and that
to the best of his memory, he paid his own way. Justice Anthony
Kennedy went at least twice before he retired. Kennedy, who did not
respond to a request for comment, did not disclose the trips. It’s
unclear if he needed to because his son is a member and gifts from
family don’t need to be reported.)

The annual Grove festival kicks off with a highly produced ceremony in
which an effigy representing worldly cares and concerns is
burned. Credit: Obtained by ProPublica

The Grove is broken up into more than 100 “camps,” essentially
adult fraternity houses where the same group of men stay together year
after year. Hill Billies was George H. W. Bush’s camp. Nancy
Pelosi’s husband has been a longtime member of Stowaway. Thomas
stays with Crow at a camp called Midway.

One of the ritzier camps, Midway employs a staff of cooks and personal
valets and boasts an extensive wine cellar. The men sleep in private
cabins that zigzag up a hillside. Known for its Republican leanings,
Midway has a string of superrich political donors as members,
including an heir to the Coors beer empire and the owner of the New
York Jets. Charles Koch is an active member, as was his brother David.
It’s not clear if Thomas has ever been the guest of a member other
than Crow.

Bohemians, as the club’s members call themselves, mingle on the deck
of Midway camp. Credit: Obtained by ProPublica

During the annual retreats, the Kochs often discussed political
strategy with fellow guests, according to multiple people who’ve
spent time with them at Midway. A few years ago, Brian Hooks, one of
the leaders of their political network, was a guest at the camp the
same weekend Thomas was there. A former Midway employee recalled the
brothers discussing super PAC spending during the Obama years and
complaining about government regulation.

“Chevron was one of the big things the Koch brothers were interested
in,” the former employee said. He did not remember if Thomas was
present for any of the discussions of the doctrine.

CLARENCE THOMAS AND THE BILLIONAIRE
[[link removed]]

But Thomas and the Kochs developed a bond over their years at the
retreat, according to five people who spent time with them there. They
discussed politics, business and their families. They often sat
together at meals and sat up talking at night at the lodge. A photo
obtained by ProPublica captures Thomas and David Koch smiling on
Midway’s deck. David’s windbreaker features an owl insignia, the
symbol of the club.

One tradition at Midway is a lecture series, often held beneath the
redwoods on the camp’s deck. The weekend Thomas was there in July
2016, the Midway schedule featured a talk from Henry Kissinger and
another by Michael Bloomberg and Arthur Brooks, then president of the
conservative think tank the American Enterprise Institute. Over
breakfast Friday morning, the author Bjorn Lomborg delivered a lecture
on climate change. Lomborg has for years argued the threat of global
warming is overstated, saying that rising temperatures will actually
save lives.

A Midway schedule featured a talk by Thomas and other
events. Credit:Highlighting by ProPublica. Obtained by ProPublica.

Thomas spoke that year as well. He talked about his friend Justice
Scalia, who had recently died, according to a person who attended.
Scalia, a conservative luminary, had been a prominent advocate for the
Chevron doctrine, but Thomas said he believed his colleague was coming
around to Thomas’ revised view on it before his death.

Thomas didn’t explain what he meant by that. “It was an aside,”
the person said, “like he assumed most of the people in the room
knew his position.”

Do you have any tips on the Supreme Court? Josh Kaplan can be reached
by email at [email protected]
[[link removed]] and
by Signal or WhatsApp at 734-834-9383. Justin Elliott can be reached
by email at [email protected]
[[link removed]] or
by Signal or WhatsApp at 774-826-6240.

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