Last week, 49 GOP members of Congress wrote House Judiciary Chairman Lamar Smith (R-TX) asking him to launch an utterly frivolous investigation into whether Justice Elena Kagan needs to recuse from the Affordable Care Act litigation. As ThinkProgress explained, the case for a Kagan recusal is so utterly lacking in merit that this call for an investigation can only be interpreted as a transparent attempt to distract from the very serious ethical scandals facing Justice Clarence Thomas.

Nevertheless, Smith took them up on their request for an investigation. In a letter to Attorney General Eric Holder, Smith seeks a pile of documents regarding Kagan’s non-existent involvement in the health care litigation:

1. All documents referring to any meetings or conversations (personal or electronic) about potential or actual health care legislation or litigation in which Solicitor General Kagan was involved, mentioned or copied.

2. All documents referencing potential or actual health care legislation or litigation in which Solicitor General Kagan was involved, mentioned or copied.

3. All documents referencing excluding Ms. Kagan from any matters involving health care legislation or litigation while she was Solicitor General.

4. All documents referencing possible recusal by Solicitor General Kagan from any matters relating to health care legislation or litigation if she were confirmed as a Supreme Court Justice.

Most of the documents Smith seeks are already public, and they reveal absolutely no evidence whatsoever suggesting Kagan should recuse. Earlier this year, a conservative news outlet filed a FOIA request seeking documents relating to Kagan’s involvement in the health care litigation. All that they were able to uncover is that Kagan directed other lawyers within her office to work on the Affordable Care Act matter, rather than actually working on the case herself.

Under federal law, judges must recuse themselves from cases where they “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” To participate as counsel, a lawyer must actually provide legal advice or otherwise act as an attorney in a case — telling another lawyer to work on a case does not constitute participation as counsel. So the right’s so-called evidence against Kagan actually proves the opposite of what they claim it proves — it shows that she scrupulously directed Affordable Care Act work away from herself and onto other lawyers in a way that eliminates any recusal issues for her as a justice.

Nevertheless, there is something ingenious about Smith’s document request. His request for documents referencing pending litigation will undoubtedly include some documents that are protected by attorney-client privilege (although the federal courts recognize a narrow exception to governmental attorney-client privilege for criminal cases, that exception does not apply here). When DOJ honors its ethical obligation not to turn over these documents, Smith will almost certainly use their adherence to legal ethics as an excuse to rant about an imagined cover-up.

Ultimately, however, the most likely purpose of Smith’s investigation remains the same. Smith would uncover nothing jeopardizing Kagan’s ability to hear the health care cases even if he were given unlimited access to DOJ’s archives. What he may accomplish, however, is shifting attention from the many, many ethics scandal involving Thomas — including a scandal strikingly similar to the gifting scandal that forced Justice Abe Fortas to resign from the Court in 1969.

Last week, the New York Times reported that Justice Clarence Thomas received a series of lavish gifts and other favors from a leading Republican donor, including $500,000 to allow Thomas’s wife to start a Tea Party group and a $19,000 Bible that belonged to Frederick Douglass. Additionally, Thomas received a gift worth $15,000 from the American Enterprise Institute, a conservative think tank that often files briefs in Justice Thomas’ Court. Justice Thomas did not recuse himself from at least three cases where AEI filed a brief.

Rather than acknowledge this ethical scandal — a scandal which is striking similar to the gifting scandal that forced Justice Abe Fortas to resign from the Court in 1969 — the GOP has decided to throw up a smokescreen. In a transparent attempt to distract from the very serious allegations against Justice Thomas, forty-nine GOP lawmakers signed a letter to the House Judiciary Committee leadership seeking an probe into utterly frivolous ethical allegations against Justice Elena Kagan:

Forty-nine Republican members of Congress on Thursday asked the House Judiciary Committee to “promptly investigate” Supreme Court Justice Elena Kagan’s role in preparing a legal defense for President Obama’s health care law, saying her prior work in the Obama administration should disqualify her from considering any challenge to the law before the high court. . . .

According to the law, they said, a justice should recuse in cases “where he has served in government employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.

First of all, there is absolutely, positively no case whatsoever supporting Kagan’s recusal from the Affordable Care Act cases. To have “participated” in a “particular case in controversy,” a judge must have been a lawyer, adviser or witness in the exact same lawsuit that is now before their court. Because none of the health care cases currently pending in federal court had been appealed before Kagan was confirmed to the Supreme Court, Kagan would not have done any work on those specific cases. Normally, the Solicitor General first becomes involved in federal litigation at the appellate level, if at all.

Second, the letter effectively accuses a sitting Supreme Court justice of perjury despite no evidence supporting that allegation. Kagan testified under oath during her confirmation hearing that she had no involvement whatsoever in the health care litigation. If the GOP actually has evidence that Justice Kagan is a felon, then they should produce it. Otherwise they should avoid making libelous accusations without proof.

Third, a hearing on Kagan wouldn’t even be the first time right-wing activists launched an unsuccessful witch hunt on this very issue. Earlier this year, a conservative news outlet filed a FOIA request seeking documents relating to Kagan’s involvement in the health care litigation. After examining the documents, National Review writer Carrie Severino, a former law clerk to Justice Thomas, was forced to conclude that the documents contain no evidence requiring Justice Kagan’s recusal.

Here’s what’s actually going on here: last week, Rep. Chris Murphy (D-CT) circulated a draft letter to his colleagues seeking an hearing on the many ethics scandals surrounding Justice Thomas and two of his conservative colleagues. The next day, he pointed out that Republicans won’t speak out against Thomas because “he’s doing their bidding on the Supreme Court today, and they don’t want to do anything that compromises his ability to enforce a political agenda in the United States judicial system.”

The GOP’s silence on Thomas is as unfortunate as it is predictable, but their baseless attacks on Kagan are particularly underhanded. Forty-nine Members of Congress just suggested that a Supreme Court justice committed a serious felony, and they appear to have made this accusation solely to distract from the massive ethics scandal plaguing one of their allies on the Supreme Court.

Almost as soon as Justice Kagan was nominated to the Supreme Court, conservatives unleashed a volley of lies claiming that she is required to recuse herself from the lawsuits challenging the Affordable Care Act. Although Kagan previously served as Obama’s solicitor general, she is only required to recuse herself from cases where she actively participated as a lawyer in that very same case — simply working in the same office as a lawyer who worked on the ACA litigation doesn’t cut it.

Nevertheless, former Minnesota Gov. Tim Pawlenty used Kagan’s recusal from a case she actually did work on as solicitor general as an opportunity to misrepresent her recusal obligations:

“I also am pleased that Justice Elena Kagen properly recused herself from participating in this ruling because of her previous position as President Obama’s Solicitor General, a precedent she must also follow when Obamacare is presented before the court,” said Pawlenty.

Pawlenty’s statement is not only false, it effectively accuses a sitting Supreme Court justice of perjury despite no evidence whatsoever justifying the claim. Kagan testified that she had no involvement whatsoever in the health care litigation during her confirmation hearing — a testimony she gave under oath. So the only way that Kagan could be required to recuse is if she knowingly lied to the Senate during her testimony. If Pawlenty actually has evidence that Justice Kagan committed such a felony, he should produce it. Otherwise, he would do well to avoid such slanderous accusations.

Sadly, Pawlenty is not the first high-profile conservative to toss around this spurious charge. Sen. Orrin Hatch (R-UT) previously made a similar accusation against Kagan, although he quickly walked back his claim after he came under fire for making such a serious allegation against a justice without any evidence to support the claim.