With Roger Sollenberger, Political Reporter

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The Big Dig this week… Clarence Thomas and the Mystery of the Missing Book Royalties

When Supreme Court Justice Clarence Thomas released a 2021 Kindle and Audiobook version of his best-selling 2007 memoir, a powerful longtime friend pitched in to juice the sales.

But even with that boost—which The Daily Beast reported came from conservative dark money mastermind Leonard Leo—the sales apparently didn’t take. At least, that’s according to Thomas’ 2021 financial disclosure, which listed no royalty income. 

His most recent disclosure, which Thomas filed with an extension in August and covers the 2022 calendar year, doesn’t list royalties, either. In fact, Thomas hasn’t reported any royalty income since 2008, the year after the release of My Grandfather’s Son, a No. 1 New York Times bestseller that earned the justice what at the time was a stunning $1.5 million advance.

While that 14-year streak may sound absurd, there are a few explanations, ranging from scandalous to banal. But judicial ethics experts tell The Daily Beast that even the most benign and plausible explanation—that the memoir simply hasn’t sold enough copies to “earn out” beyond his huge advance—raises ethics concerns that apply to the justices more broadly.

Bench press

Today, it’s common for Supreme Court justices to land lucrative book deals. Several justices have reaped seven-figure windfalls, including Amy Coney Barrett ($2 million advance), Ketanji Brown Jackson ($3 million), Sonia Sotomayor ($3.1 million), and Neil Gorsuch (at least $650,000 for a 2019 book, with a $250,000 partial advance on a new work).

But in this department, the famously private and reticent Thomas was the trendsetter. The $1.5 million advance on royalties from HarperCollins towered over the previous book deals given to his peers on the bench. It was also the first major personal windfall for Thomas, who The New York Times reported was still one of the poorest justices even after the advance. He remains one of the poorest members to this day, though the largesse from a network of conservative billionaire friends has funded a lifestyle far out of that league.

Do not pass go, do not collect $200

Ethics rules require justices to disclose any advances and royalties they receive above $200. On the same form that Gorsuch reported his initial $250,000 installment, he included $308.44 in royalties from a 2009 academic work; last year, that book earned him $277.57.

But Thomas has gone 14 years without reporting any royalties on a memoir that topped the charts—one which the reclusive conservative promoted in part with a speaking tour and major interviews on reliable sales engines like “60 Minutes” and “The Rush Limbaugh Show.” Last week, ProPublica reported that those promotional efforts also extended to at least one private gathering with wealthy people who have had interests before the Supreme Court.

Abridged version

Several legal ethics experts theorized ways Thomas may have forwarded or reassigned his royalty payments, which could test the bounds of disclosure law.

For instance, Virginia Canter, chief ethics counsel for watchdog Citizens for Responsibility and Ethics in Washington, proposed that Thomas could have donated the royalties to a charity or assigned them to the consulting firm belonging to his wife, Ginny Thomas—a company that has previously received nonpublic payments from Leo, according to The Washington Post.

She also pointed to the raft of recent reporting about the couple’s entanglements with wealthy benefactors. Those benefactors include Leo, whose private PR company, CRC Advisors, promoted the 2021 Kindle release of Thomas’ memoir, along with a number of other ventures exalting Thomas.

“If [Thomas] is tapping into that network of dark money groups to purchase the books and they’re the same dark money groups presenting arguments to the court, it looks like Thomas is beholden to Leo and those supporters and the grounds for recusal in those cases are strengthened,” Canter said.

Dime novel

But it’s possible that Thomas’ reporting in this regard has been accurate. In fact, it’s the most likely explanation: The book has not sold enough copies to generate royalty income in excess of his $1.5 million advance—also known as “earning out.”

The Daily Beast sent questions to a number of people and entities for this article, including Thomas associates, the Supreme Court, and his publisher, HarperCollins.

A HarperCollins spokesperson replied that the company “does not comment on authors’ advances or any financial matters pertaining to their books.” The Supreme Court press office did not respond to emailed questions, which The Daily Beast also requested be forwarded to the justices mentioned in this report.

One source, however, did tell The Daily Beast that the book apparently still has not earned out. We could not independently verify that information.

Royalty calculations are notoriously tricky, and depend on contractual details that are often unknown to the public. Thomas’ royalty rate isn’t public information, and the book’s price has dropped over the years—though it is still selling. According to Publisher’s Weekly, Thomas had sold more than 242,000 copies of My Grandfather’s Son as of this August. That number bumps up against the magic 250,000 “earning out” mark floated earlier this year by Fix The Court’s Gabe Roth, a judicial reform advocate who has testified as an expert before the House and Senate.

Sotto voce

If the book in fact still hasn’t earned out, some ethics experts argue that would point to a larger and ongoing concern about the justices generally.

Kathleen Clark, a legal ethics expert at Washington University-St. Louis School of Law, said that exorbitant advances could be seen as a gift.

“One of the problems with the Court having financial transactions like book advances is that in theory those advances may not reflect the commercial value of the book, and appear as a windfall for the justice,” Clark said. “It raises the specter of an advance that is actually something like a gift.”

She and other experts pointed to the sky-high deals that justices have landed after Thomas’ deal, noting that the authors would appear to have little hope of selling enough copies to justify the advance. Clark observed irony in the fact that this specific imbalance was recently invoked in defense of Justice Sotomayor, who this summer was reported to have encouraged her staff to promote her memoir.

That defense was that Sotomayor wasn’t putting money back in her pocket, because her book had not earned out—and would in fact need to double its sales to do so.

Sotomayor declined to recuse herself in two cases involving copyright infringement issues with her publisher, Penguin Random House. (Gorsuch, who has the same publisher, also did not recuse from the second case after he joined the court.) In both instances the publisher ultimately won in a lower court.

Bottom line

Danielle Caputo, counsel for legal ethics with nonpartisan watchdog Campaign Legal Center, pointed back to Leo, whose Kindle promotions would have nudged the book closer to that magic number where sales would once again put money in Thomas’ pocket.

“That raises questions, understandably, about those strong personal relationships and ties, and where Thomas may not recuse himself from cases that may involve Leo,” Caputo told The Daily Beast. “It leads the public to wonder whether this creates some sense of impropriety, and whether the justice will be favorable to one party over the other.”

Her group’s chief concern, she said, is that the Supreme Court has no way to deal with these questions beyond its current reporting requirements, which are far weaker than elsewhere in government. (Members of the House, for instance, must secure approval from the ethics committee for their book contracts.)

“There can be a process in SCOTUS to better address these kinds of questions,” she said. “There needs to be a better process.”

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From Roger’s Notebook...

Bullion Bob. Last Thursday, Pay Dirt reported that an indictment of Sen. Bob Menendez (D-NJ) appeared imminent. Perhaps a little too imminent? The next day, the Justice Department brought bribery charges against Menendez and his wife for accepting “hundreds of thousands of dollars of bribes in exchange for using Menendez’s influence as a Senator to seek to... benefit the Arab Republic of Egypt.”

Seemingly lost among the outrageous details in the indictment is the damning central point—that prosecutors have essentially alleged the sitting chair of the Senate Foreign Relations Committee of being a spy. In return for cash and gifts, they said, Menendez “provided sensitive, non-public U.S. government information to Egyptian officials, and otherwise took steps to secretly aid the government of Egypt.” He also allegedly meddled in the appointment of a U.S. Attorney.

But the indictment was stuffed with colorful detail—kind of like Menendez’ home was stuffed with envelopes of cash even after an FBI visit last summer. Investigators claim to have found more than $500,000 in those envelopes, including in the pockets of a Congressional Hispanic Caucus windbreaker bearing Menendez’ name. The envelopes also allegedly bore the fingerprints, DNA, and at one point the return address of an alleged co-conspirator.

But it wasn’t just cash. The indictment also alleges Menendez accepted non-monetary bribes, including a Mercedes Benz convertible and more than $100,000 in gold bullion bars. Because gold bars have unique serial numbers, investigators claimed they traced 11 of the bars in the Menendez home back to two alleged co-conspirators. The indictment says that after one call with an Egyptian official, Menendez immediately googled “kilo of gold price.”

More than half of Senate Democrats have demanded Menendez’s resignation, including the second and third highest-ranking members, Sens. Richard J. Durbin of Illinois and Debbie Stabenow of Michigan. But so far, Majority Leader Chuck Schumer has come up short of calling for resignation. Menendez stepped down as chair but has insisted he won’t resign his seat. Democratic Rep. Josh Gottheimer gave his fellow New Jerseyan a max donation and is planning a D.C. fundraiser next month, according to the New Jersey Globe.

Rubaiyat. Perennial Republican candidate and conspiracy theorist Omar Navarro has been indicted on 43 counts, including campaign finance violations for “funneling tens of thousands of dollars in campaign donations back to himself through his friends and family,” according to a Justice Department press release on Wednesday.

The indictment claims that Navarro funneled some of that campaign cash to himself via payments to various individuals, including his mother, who was also arrested as part of the scheme. He was charged with one count of conspiracy, 26 counts related to filing false records, 13 counts of wire fraud, and three counts of illegal use of campaign money.

Navarro allegedly used campaign donations for personal expenses—including trips to Las Vegas and California wine country—as well as to pay personal attorneys, prosecutors said. He also served as his own campaign treasurer, which earned him additional charges for allegedly making false statements in Federal Election Commission filings. The amounts exceeded $100,000, according to the indictment. The scheme also allegedly involved a “sham charity” dubbed the United Latino Foundation, which Navarro created to embezzle further campaign funds for personal use.

Navarro campaigned against Rep. Maxine Waters (D-CA)—one of the GOP’s go-to punching bags—in the four most recent cycles, leveraging the attention from his opponent to attract donations and cultivate an online following. The Los Angeles Times reported that his campaign went from raising less than $3,000 in 2016 to $1.2 million in 2018 and $730,000 in 2020. At one point, Roger Stone served as campaign manager. He frequently received less than 25 percent of the vote.

Once more, with feeling. After putting a controversial discussion on hold ahead of a congressional hearing this month, the FEC has reintroduced a GOP commissioner’s proposal that could further hamstring the agency’s already strained enforcement officials.

The commissioner, Allen Dickerson, submitted a memo in August outlining new reforms to the enforcement process, which among other things would expand the six-person board’s power over investigations, granting them the ability to veto even line items like individual subpoenas. The move riled campaign finance reform advocates, who argue that such a development would open the door for ideological micromanagement over an enforcement process that commission hardliners have already weakened to an intolerable point. The proposal is slated for discussion at the commission’s Oct. 5 meeting.

Strikeout. The resolution of the WGA entertainment writers’ strike might bring some downwind relief to California politicians. Politico California reported on Tuesday that “Hollywood has long acted as a kind of high-limit ATM machine spitting out over $100 million dollars into state and national campaign coffers during major election cycles,” but that tap was all but cut off during the lengthy strike, when “candidates feared that holding fundraisers in Los Angeles would be bad optics.”

Some local campaigns blame the dispute for as much as a 25 percent shortfall in projected contributions, with effects ranging from county and city contests to President Joe Biden’s 2024 campaign, Politico reported.

Citizens United, Indiana chapter. In a decision that favors attempts to overthrow a state law capping corporate donations to super PACs, the Indiana Supreme Court ruled 4-1 on Wednesday that yes, the law does in fact limit those donations. The ruling now allows famed anti-abortion and political attorney Jim Bopp to move ahead with his federal case, alleging that the state’s law conflicts with the 2010 Citizens United decision—which Bopp had also won.

The state had argued, among other things, that elections officials vowed not to enforce the law, but the court wasn’t convinced. In the case, Bopp represents an anti-abortion super PAC called “Indiana Right to Life Victory Fund.” An Indiana media company called Sarkes Tarzian complained that the law caused it to withhold contributions it wanted to make to the super PAC. The case now returns to federal court.

AI yi yi. In a Senate Committee on Rules and Administration hearing on Wednesday, former Republican FEC chair and founder of Campaign Legal Center Trevor Potter told lawmakers that the government needs more power to prevent campaigns and bad actors from using artificial intelligence to create and spread misinformation.

The issue walks a narrow first amendment line of permitted political speech. Currently, Potter explained, the FEC can act against candidates who engage in certain acts, like falsely attributing statements to an opposing candidate. Potter argued that the FEC should take the position “that the use of AI is included in this prohibition,” Courthouse news reported.

Potter called on Congress to extend that existing ban beyond candidates to include any person. But Senate Republicans, led by ranking member Sen. Deb Fischer of Nebraska, voiced doubt about whether such a move would infringe on technological advancement or 1A rights. She was joined by tech lawyer Ari Cohn, who argued that restrictions on AI-generated political content could cause collateral damage for “an enormous amount of protected and even valuable political discourse.”

But Potter took issue with those points, arguing that targeted restrictions wouldn’t butt heads with the constitution. “There is no countervailing first amendment right to intentionally defraud voters in elections,” he said.

More From The Beast’s Politics Desk

Republicans have increasingly been playing politics with aid to Ukraine, an issue whose initial overwhelming bipartisan support has begun to crack in recent months. Sam Brodey and Matt Fuller interviewed more than 30 lawmakers to tell the story behind the steady creep of right-wing influence, and you should absolutely learn what they had to say for themselves.

This week, Donald Trump essentially lost his $250 million New York fraud case before it even got off the ground. Jose Pagliery explains why a judge just deemed the former president and his heirs liable for “persistent and repeated fraud,” dealing what could amount to a death blow to the former president’s companies and cashflow at a truly inconvenient moment. 

Congressional candidate Derrick Anderson is running in a Virginia district outside of where his supposed primary residence is. But Anderson won’t admit that fact, and his explanation is only creating more questions—as you’ll see in Jake Lahut’s investigation this week.

We'll be back next week with more Pay Dirt.  Have a tip? Send us a note and subscribe here.