Here comes the Clarence Thomas investigation

Senate Democrats announced on Monday that they’re sending subpoenas to the people who have been bankrolling Supreme Court Justice Clarence Thomas, as part of their ongoing congressional probe into Thomas’ corrupt behavior.

As this matter gets underway, it’s important to understand what a congressional probe is and is not. Otherwise you’ll go into this with impossible expectations, you’ll be surprised and disappointed by everything that happens, you’ll miss the victories if and when they do occur, and you’ll end up mistakenly bashing the Democrats. And we don’t need any of that. So let’s talk about what this really is.

A congressional probe is not in any way a criminal probe – even if it’s probing criminal behavior. Congress cannot bring criminal charges, or put someone on trial, or anything like that. Congress can’t even issue “real” subpoenas. A prosecutor uses a grand jury of the people to issue subpoenas, so the courts see that as sacred, and aggressively enforce such subpoenas – meaning there’s never any getting out of them. But the courts see congressional subpoenas as a sort of partisan stunt, and all you really have to do is fight it in court until the end of the term.

So why does congress bother doing investigations and sending “subpoenas” that the courts won’t really enforce? For this reason only: to influence public opinion and raise awareness. When Congress issues a subpoena, it’s for the purpose of getting the media and the public to pay attention.

The subpoena, the subsequent media coverage, and the resulting public attention, all serve to put public pressure on the target to agree to testify, just to make the endless barrage of headlines go away. It’s a process, a ramp-up. It takes time.

And it often works. The January 6th Committee managed to get most of its subpoena targets to testify, by setting things up such that they would look terrible in the public eye if they refused to testify. This is how the game works, it doesn’t work a different way, and no amount of impassioned righteous ranting in the comments to this article is going to change the reality of how things work.

And the people on our side who are yelling “it’s about time the Democrats are finally playing hardball” on social media right now? These are very clueless people, who are entirely ignorant about how political pressure actually works, and they’re not helping things.

To whatever extent these subpoenas do end up working, it’ll be because Senate Democrats first spent enough time getting the Clarence Thomas scandal to snowball in the media, so that these subpoena recipients will conclude that cooperating is their least bad option.

So why the timing? Why now? Senate Democrats are smartly putting public focus on the Clarence Thomas scandal heading into an election year. Which is the point: make the 2024 election about Clarence Thomas.

If Crow and others reluctantly cooperate, it’ll give the Senate material to work with during its inevitable public hearings. If the targets refuse to cooperate, the narrative of the public hearings will be “they’re hiding something ugly or else they’d be here testifying.” And either way the hearings will be a win, because this is about convincing people in the middle that Clarence Thomas’ Republican Party is corrupt, extremist, and should lose power in the 2024 election.

Congressional probes are for influencing public perception. To whatever extent there’s a criminal aspect to Clarence Thomas’ scandals, that’s a matter for the DOJ – whose subpoenas are actually enforceable.

The entire time the January 6th Committee hearings were going on, a lot of folks on our side thought it was some kind of criminal probe, and spent the whole time ranting about subpoenas not being enforced, and thought Trump would somehow fall through a trap door into prison on the final day of the hearing – when none of that was reality.

Even as the January 6th Committee hearings were playing out publicly, the DOJ was busy investigating the same matter behind the scenes. A lot of folks on our side insisted that DOJ probe didn’t exist, because they weren’t hearing about it. Then the DOJ indicted Trump on a boatload of charges, making clear that the DOJ had been quietly doing its job at all along.

In this instance we don’t know if there’s a DOJ probe into Clarence Thomas. Suffice it to say that if there’s an actual criminal element to this (not all corruption is criminal under the law), then the DOJ is all over it. But as we saw with the Trump probe, the DOJ does not advertise its ongoing probes.

We also saw in the January 6th Committee hearings that Congress can make a criminal referral to the DOJ. But that’s not in any way binding. As with every other aspect of a congressional probe, a criminal referral is primarily about influencing public perception. When the committee referred Trump for prosecution, it helped educate the public on why Trump’s actions were criminal. But we can all see in hindsight that the DOJ was already in the process of bringing criminal charges against Trump at the time that referral was made.

As a side note, you can end up in prison if you just straight up ignore a congressional subpoena, as we learned with Steve Bannon and Peter Navarro. But most people aren’t that stupid. They know that all you have to do is fight the subpoena in court until the end of the term. There’s no reason to expect people like Harlan Crow and Leonard Leo to just volunteer for prison, like Bannon and Navarro did. The question is whether Crow and Leo will try to drag out the subpoenas in court even as ugly media headlines mount about what they’re trying to hide, or if they’ll go ahead and testify in the hope of taking the heat off themselves.

One other thing to keep in mind: people are most inclined to cooperate with a congressional subpoena when they’re confident that they’re not being separately investigated by prosecutors. They’re least inclined to cooperate with a congressional subpoena when they do know (or fear) that they’re under criminal investigation, because then they worry that their congressional testimony could be used against them by prosecutors. So when someone feels compelled to try to fight a congressional subpoena, it’s usually not a good sign for them. Keep that in mind as this Senate investigation into Clarence Thomas moves forward.