Bribing Clarence
By 
For all you law-knowers out there, would this technically constitute attempted bribery under federal law?
There’s a reason John Oliver and his Last Week Tonight crew keep winning Emmys: All of the other late-night TV hosts are all talk and no action.
Oliver’s Season 11 premiere ended with perhaps his boldest move yet, as he offered sitting Supreme Court Justice Clarence Thomas $1 million per year—plus a brand-new, state-of-the-art motor coach worth an estimated $2.4 million, to replace the justice’s current rig—if Thomas resigns immediately from the highest court in the United States. Oliver’s offer expires in 30 days.
“Clarence Thomas is arguably the most consequential justice on the court right now, and he’s never really seemed to like the job. He’s said it’s not worth doing ‘for the grief.’ So what if he could keep the luxury perks that he clearly enjoys without having to endure all of that grief?” Oliver asked. “We have a special offer for you tonight. We are prepared to offer you $1 million a year for the rest of your life if you simply agree to leave the Supreme Court immediately and never come back.”
Oliver then displayed a contract. “This is not a joke,” he said. “This is real. A million dollars a year until you or I die.”
He said he and his show spoke with legal experts who assured him the offer is legal. “Which seems crazy to me because it really feels like it shouldn’t be. But as they keep pointing out, there are no rules in place to stop me from doing this. And let me be clear: HBO is not putting up the money for this. I am personally on the hook.”
Oliver admitted he might regret this offer if Thomas accepts it: “I could be doing stand-up tours for your retirement for years.”
Oliver had spent the bulk of the episode diving into the many conflicts of interest surrounding multiple members of SCOTUS, how the American public’s approval of the court has sunk to 18 percentage points, and how important some of the cases in front of SCOTUS are now—not just the issues involving whether former President Donald J. Trump should be disqualified from the 2024 ballot due to insurrection under the 14th Amendment or whether Trump has immunity from any prosecution, but also matters involving abortion rights as well as the right of the federal government to regulate anything at all.
But Oliver zeroed in on Thomas, whose lack of recusals for sitting on cases involving his wife, Ginni, are just the tip of the iceberg compared to all of the financial favors Thomas’ wealthy friends have bestowed on him since he joined the court.
One of those things, as featured in a 2017 episode of 60 Minutesand more recently questioned, is a $267,000 loan the Thomas’ were given for the motor coach the couple has used to drive across the country–and then never asked to pay back.
Recent Supreme Court jurisprudence has narrowed the definition of a bribe to situations in which, in the case of a Republican official, any transfer of money to that person must occur via a financial instrument which includes a notation that the payment is made in consideration of a performance of an official act by that person, but I have to say this seems to meet even that very liberal standard. (I recently won a lawsuit because the dean of my law school sent me an email with the subject line “Here’s how I’m retaliating against you for threatening to sue” so you never know).
On the other hand, the First Amendment is supposed to provide great leeway for parody and satire, so I think the real answer here is that this becomes a bribe only if Thomas takes it seriously and accepts it, thereby transforming satirical black comedy into a documentary. Which come to think of it is pretty much exactly what has been happening every day in this country since at least June 16, 2015.
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