Justice Thomas Aide Received Venmo Payments from Anti-Affirmative Action Lawyers in 2019, Sparking Ethics Questions

The Harvard Crimson

William S. Consovoy speaks to the press outside the John Joseph Moakley United States Courthouse in November 2018.Photo byAmy Y. Li
By Michelle N. Amponsah, Crimson Staff Writer

July 20, 2023

Attorneys Patrick Strawbridge and William S. Consovoy — who successfully litigated an effort to effectively strike down affirmative action — made Venmo payments to a then-legal aide for Associate Justice Clarence Thomas, the Guardian reported last week.

According to the Guardian, the 2019 Venmo transactions show Rajan Vasisht, who worked as Thomas’s aide from 2019 to 2021, was the recipient of payments in November and December from seven lawyers including Consovoy and Strawbridge — all of whom are former clerks for Thomas. Consovoy and Strawbridge both clerked for Thomas during the 2008-09 term.

Consovoy, one of the founding partners of Consovoy McCarthy, represented anti-affirmative action group Students for Fair Admissions until his death in January. Consovoy argued the case before the First Circuit Court of Appeals and was scheduled to appear before the Supreme Court but withdrew to receive cancer treatment. Strawbridge appeared before the district court and the Supreme Court to represent SFFA.

While Vasisht’s Venmo account is no longer public, the Guardian reported that the Venmo transactions were listed under phrases like “Christmas party,” “Thomas Christmas Party,” “CT Christmas Party,” and “CT Xmas party,” in reference to Thomas’ initials.

The entrance fee was $20 and the date and time of the Christmas party was Dec. 13 at 1 p.m, according to a copy of Thomas’s party invitation obtained by The Crimson. The invite requested that recipients RSVP on or before Nov. 29, 2019.

The Guardian reported that screenshots of the payments showed Strawbridge paid Vasisht over Venmo on Dec. 13, 2019 — the same day as the party. Consovoy paid Vasisht one month earlier, on Nov. 18, 2019.

Vasisht declined a request for comment from the Guardian.

“Why would a Supreme Court aide for a judge – any aide for a judge — want to be getting Venmo payments from lawyers for any reason, when there’s so many better ways to deal with this?” said Richard W. Painter ’84, who worked as the chief ethics lawyer to former president George W. Bush.

Harvard Law School professor Lawrence Lessig said he did not think there was anything “problematic” with Vasisht collecting money if the money was covering the costs of the events that clerks are invited to.

“The idea that the clerks are just paying the cost of them coming seems to me untroubling,” he added.

“It is common for clerks to cover their share of the cost of an event like a chambers Christmas party,” Strawbridge wrote in an emailed statement Thursday. “In this case, I paid $20 to cover my share of the expenses for a lunch buffet consisting of hot dogs, hamburgers, and chicken tenders.”

“At no time have I (or anyone else I know) ever discussed with Justice Thomas matters that are pending or likely to come before the Court. I do recall visiting with him for a few minutes about how my wife and children were doing,” Strawbridge added.

Other lawyers who paid Vasisht over Venmo were Kate Todd, who worked as White House deputy counsel during the Trump administration; Elbert Lin, a former West Virginia solicitor general; Brian Schmalzbach, a partner at McGuireWoods who has argued before the Supreme Court; Manuel Valle, a former clerk for Thomas and current managing associate at Sidney Austin LLP; and Liam Hardy, an appeals court judge for the armed forces.

Hardy did not respond to multiple requests for comment. Schmalzbach and Valle declined to comment on the payments. Lin and Todd could not be reached for a request for comment.

The payments are the latest in a series of ethics questions surrounding Thomas, who has faced criticism for his close relationship with conservative megadonor Harlan Crow and other wealthy benefactors.

Lessig, who clerked for Associate Justice Antonin Scalia in 1990, said that Scalia would have a yearly dinner for clerks and former clerks.

“The dinner was at the Supreme Court — it was a catered event. And clerks would contribute to the cost of the dinner,” he said. “The question that is raised about what Thomas is alleged to have done, is whether the clerks were the people collecting money or collecting money for anything other than the costs of an event like that.”

“All justices have those kinds of events,” Lessig added.

Painter, the ethics lawyer, said that he does not think that the way the payments were done “actually corrupted Justice Thomas.” He added that in social settings with justices and lawyers, “the ethics rule is only implicated if they talk about the case.”

SFFA first sued Harvard and UNC in 2014. SFFA argued that Harvard discriminated against Asian American applicants and violated Title VI of the Civil Rights Act of 1964, which prohibits institutions receiving federal funding from discrimination “based on race, color or national origin.”

In 2019, federal judge Allison D. Burroughs ruled in Harvard’s favor, finding that the University did not intentionally discriminate against Asian American applicants. In 2020, the First Circuit Court of Appeals upheld the lower court’s ruling.

SFFA petitioned the Supreme Court to review the lower court decisions, and the case was accepted in January 2022.

Adam K. Mortara — the lead trial lawyer for SFFA in its case against Harvard and another former Thomas clerk — wrote in an emailed statement Friday that he saw no problem with the payments.

“I am not aware of any ethical issue that arises from judges having a social friendship with former law clerks who appear in front of them,” Mortara wrote. “The Committee on Codes of Conduct of the Judicial Conference of the United States has an advisory opinion that makes clear that even long-time friends of a judge can appear in front of that judge, as long as the relationship is not ‘like that of a close relative.’”

Painter disagreed.

“I don’t think that you should ever have lawyers sending money for any reason to a judge, or you do everything you can to avoid it,” Painter said. “Small money, big money — we shouldn’t have lawyers sending money to a judge.”

“Individual lawyers arguing cases before the court sending money to a judge — I just think it’s a slam dunk no-go,” he added.

—Staff writer Michelle N. Amponsah can be reached at michelle.amponsah@thecrimson.com. Follow her on Twitter at @mnamponsah.

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