(Bloomberg) — Justice Clarence Thomas said he was advised he didn’t have to disclose private jet flights and luxury vacations paid for by billionaire Harlan Crow because, although a close friend, Crow “did not have business before the court.”
Most Read from Bloomberg
But in at least one case, Crow did.
Bloomberg reviewed dozens of state and federal cases involving companies that the Crow family has owned or had a financial stake in since Thomas’ 1991 confirmation. Nearly all of these disputes played out at the trial and appellate level and didn’t reach the Supreme Court.
In January 2005, though, the court declined to hear an appeal from an architecture firm that wanted more than $25 million from Trammell Crow Residential Co. for allegedly misusing copyrighted building designs. When the court issued a one-sentence order denying the petition, there were no noted recusals — indicating that Thomas participated — and no noted dissents.
The Crow family had a non-controlling interest in the company at the time, according to a statement to Bloomberg from Harlan Crow’s office. Thomas had already reported a 1997 private flight and high-dollar gifts from Crow, both documented in a December 2004 report from the Los Angeles Times. The justice had described Crow and his wife Kathy as “personal friends.”
Trammell Crow Residential was founded in 1977, part of the real estate empire created by Harlan Crow’s father, Trammell Crow. During the time when the architecture firm’s case was making its way through the courts in the early 2000s, Crow Holdings, a privately owned development and investment firm that manages the Crow family’s capital, held less than a 50% stake in Trammell Crow Residential, and wasn’t involved in its operations, Harlan Crow’s office told Bloomberg.
When the architecture firm filed its appeal to the Supreme Court, Harlan Crow was Crow Holdings’ chief executive officer and chair of its board, a position he still holds; he stepped down as CEO in 2017. Crow Holdings’ website cites the residential company’s founding as a key moment in its history and one of its primary “development platforms.”
“At the time of this case, Trammell Crow Residential operated completely independently of Crow Holdings with a separate management team and its own independent operations,” Crow’s office said in a statement. “Crow Holdings had a minority interest in the parties involved in this case and therefore no control of any of these entities. Neither Harlan Crow nor Crow Holdings had knowledge of or involvement in this case, and a search of Crow Holdings legal records reveals no involvement in this case. Harlan Crow has never discussed this or any other case with any justice.”
Thomas didn’t respond to questions submitted to a Supreme Court spokesperson and a personal representative.
A ProPublica report earlier this month detailed how Crow, a longtime donor to Republican political campaigns and conservative causes, has bestowed lavish trips on Thomas for more than two decades. By their own accounts, the two men had been friends for at least eight years when the architecture firm’s petition reached the Supreme Court in 2004.
Court filings in the 2004 case don’t name Harlan Crow or Crow Holdings, which raises the question of whether Thomas would have recognized Crow’s connection to Trammell Crow Residential, or seen the full list of parties, said Arthur Hellman, a judicial ethics expert at the University of Pittsburgh School of Law.
The justices maintain their own lists of names and companies that get checked for conflicts as new cases come in. They typically don’t read all of the initial briefs if they reject a case based on a summary drafted by a law clerk, a system used by most of the justices. Although there were multiple parties in the 2004 case, the corporate entity listed first didn’t have “Trammell Crow” in its name.
Given Crow’s status as “a close friend and a generous benefactor,” Thomas should have recused himself from cases where he knew or should have known that Crow had a direct financial interest, Hellman said. But he said it seemed unlikely that the justice would have been on notice or had reason to investigate the architecture firm’s petition at the time, he said.
Close friendships can warrant recusals, Hellman said. He said that the key question is: “Would a reasonable person, knowing all of the circumstances, question the judge’s impartiality?”
Stephen Gillers, a judicial ethics expert at New York University School of Law, said that given the close relationship between the Thomases and the Crows over 25 years and the many commercial interests of Crow and his companies, Thomas should have been “hypervigilant to the prospect of a Crow interest showing up on the Court’s docket.”
Disqualifications and Disclosures
US law does lay out specific scenarios where the justices and federal judges are disqualified from cases – such as if they or a close relative stand to financially gain from the outcome. Beyond those, members of the judiciary get wide discretion to decide if they should step aside. The law doesn’t include a penalty for violations.
The recent revelations about Thomas and Crow’s friendship have prompted renewed calls for the Supreme Court to adopt a code of conduct and disciplinary process similar to the one that covers lower federal court judges. Even under the existing rules for the lower courts, though, a judge’s decision to not recuse wouldn’t provide grounds for an ethics complaint, according to Brookings Institution senior fellow Russell Wheeler.
Thomas hasn’t noted free travel on Crow’s private jet and super-yacht and other hospitality in his annual financial reports since at least 2000, the earliest year the filings are available through watchdog groups Fix The Court and Open Secrets. ProPublica also revealed an unreported 2014 real estate deal in which Crow bought three properties owned by Thomas and his family members, including the justice’s childhood home.
Crow said in response to the reports that he and his wife had never discussed court business with Thomas or “sought to influence Thomas on any legal or political issue.” He has scoffed at the idea that his connection with Thomas is transactional, saying in a recent Dallas Morning News interview that he and the justice have different views on a variety of topics, including abortion. Crow called the recent spate of reporting a “political hit job.”
The 2004 case was brought by Dallas-based Womack+Hampton Architects LLC, which had designed apartment projects for Trammell Crow Residential in the late 1990s. The firm claimed the developer wrongly allowed other architects to use its designs in later projects.
Womack+Hampton calculated potential damages for the alleged copyright infringement at $25 million or more, according to court filings.
Judges repeatedly ruled against Womack+Hampton. They held that, at most, the firm would be entitled to “reuse” fees laid out in contracts – sums in the tens of thousands of dollars, not millions – and that the contract did allow Trammell Crow Residential to hire other architects and incorporate the designs. The 5th US Circuit Court of Appeals upheld a federal district judge’s judgment.
When the architecture firm petitioned the Supreme Court in 2004, the case showed up under the name “Metric Holdings Limited Partnership,” a company described in court filings as a “Trammell Crow Entity.” The petition lists all of the parties involved, as does the response that Trammell Crow Residential and its co-defendants filed arguing for the court to reject the case; the cover page indicates that “Trammell Crow Entities” are lead parties.
Mike Hampton, a lead architect with Womack+Hampton, declined to comment.
NYU’s Gillers said there’s no question in his mind, given that Thomas confirmed the nature of his relationship with Crow in his defense to the ProPublica report, that “he needed to recuse himself from deciding a case in which his good friend had an obvious financial interest.”
–With assistance from Greg Stohr.
(Updates with decline to comment from Mike Hampton of Womack+Hampton in penultimate paragraph)
Most Read from Bloomberg Businessweek
©2023 Bloomberg L.P.