Justice Gorsuch's Omission on His 2017 Financial Disclosure Form

Gorsuch Certified the Disclosure was Complete Though He Omitted the Name of the Buyer in a Private Transaction

Politico and ProPublica have done wonderful investigative research on the ethical lapses of both Justice Thomas and Gorsuch. Coupled with decisions contrary to the will of the people, they are aiding the Supreme Court’s downward slide in its credibility and legitimacy. And if the Court loses its legitimacy, why should anyone follow its decisions?

The case of Justice Gorsuch is more serious than some commentators have portrayed it as an unethical lapse but not a violation of law. They are wrong.

Justice Gorsuch owned an interest in an entity called The Walden Group, LLC which owned real estate in Colorado that Justice Gorsuch was trying to sell for two years without a buyer. Shortly after he was confirmed as an Associate Justice of the Supreme Court, The Walden Group, LLC sold the land it owned to a buyer, and Justice Gorsuch reported in his Financial Disclosure form for 2017 that the sale netted him between $250,000 and $500,000. But the form had a column saying that for a Private Transaction, the Buyer or Seller was to be identified. But Justice Gorsuch left the column blank and did not list the name of the Buyer.

Then at the Bottom of the Financial Disclosure form, Justice Gorsuch certified that the Financial Disclosure was “accurate, true and complete.” But it was not as the name of the Buyer was not included as required for a private transaction.

Right under Justice Gorsuch’s signature, the Form states: “NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILLINGLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. app 104).

The Form is now outdated as 5 U.S.C. Appendix 104 was replaced by 5 U.S.C. sec. 13106 on December 22, 2022. But 5 U.S.C. Appendix sec. 104 was in effect when Justice Gorsuch signed the form. That section provided:

a) (1) The Attorney General may bring a civil action in any appropriate United States district court against any individual who knowingly and willfully falsifies or who knowingly and willfully fails to file or report any information that such individual is required to report pursuant to section 102. The court in which such action is brought may assess against such individual a civil penalty in any amount, not to exceed $50,000.

(2) (A) It shall be unlawful for any person to knowingly and willfully(i) falsify any information that such person is required to report under section 102; and ii) fail to file or report any information that such person is required to report under section 102. (B) Any person who(i) violates subparagraph (A)(i) shall be fined under title 18, United States Code, imprisoned for not more than 1 year, or both; and (ii) violates subparagraph (A)(ii) shall be fined under title 18, United States Code.

(b) The head of each agency, each Secretary concerned, the Director of the Office of Government Ethics, each congressional ethics committee, or the Judicial Conference, as the case may be, shall refer to the Attorney General the name of any individual which such official or committee has reasonable cause to believe has willfully failed to file a report or has willfully falsified or willfully failed to file information required to be reported. Whenever the Judicial Conference refers a name to the Attorney General under this subsection, the Judicial Conference also shall notify the judicial council of the circuit in which the named individual serves of the referral.

Politico’s investigators searched Colorado land records and found the transaction, and they have identified the Buyer as Brian L. Duffy, the Chief Executive Officer of Greenberg Traurig. a large law firm having substantial appellate practice in the Supreme Court.

Several commentators have told the New York Times that the omission was not a violation of law. But I disagree as Justice Gorsuch certification that the form was accurate and complete was untrue as the form required the identity of the Buyer in the case of a Private Transaction, and that follows from 5 U.S.C. Appendix 102 which said that the filer must list the “source and type of income which consists of … capital gains.” So, Justice Gorsuch failed to list the “source” of the capital gains arising from the sale of the Colorado land as 5 U.S.C. Appendix 102 clearly required.

Since the certification that the Form was complete was erroneous and was a false statement, Justice Gorsuch could be prosecuted under 5 U.S.C. Appendix 104 on referral to the Attorney General by the Judicial Conference.

Omitting the source of up to a half million dollars is not a minor transgression.

But together with the Thomas ethical lapses over twenty years, the Justices of the Supreme Court, charged with interpreting complex statutory and Constitutional issues, are undermining their own legitimacy by not filling out Financial Disclosure forms accurately stating the source and amount of outside income they have received.

Coupled with decisions that stretch the truth, as Justice Gorsuch’s opinion in the Coach Kennedy case, and the decisions contrary to the will of the people, such as the Alito’s Dobbs abortion decision or Thomas’ New York Rifle decision, the Court is undermining its own legitimacy. If the Court loses legitimacy, what is the remedy? Perhaps restructuring through statutory expansion of the Supreme Court.