The U.S. Supreme Court is taking up a previously unconsidered question: whether having held the office of the president grants absolute immunity and constitutional protection from prosecution in perpetuity. That’s “a fundamental question at the heart of our democracy,” special counsel Jack Smith’s team wrote in a petition to the court asking for an expedited review of Donald Trump’s presidential immunity claim. Trump is attempting to evade criminal prosecution for his efforts to overturn the 2020 election, including the attack on the U.S. Capitol on Jan. 6, 2021.
But is the whole of the Supreme Court committed to our democracy? That’s the question raised by Sen. Dick Durbin, the Democratic chair of the Senate Judiciary Committee. He and other Democrats on the panel are calling for Justice Clarence Thomas to recuse himself from the case because of a conflict of interest. Thomas’ wife, Ginni, was deeply involved in the effort to help Trump have a coup.
“There are so many unanswered questions about the relationship of the justice and his family with the Trump administration that I think in the interests of justice, he should recuse himself,” Durbin told The Hill. “If we say certain people are above the law, I believe it diminishes values in this country.”
Sen. Richard Blumenthal of Connecticut told The Hill that the whole court should be carefully considering their participation. “[T]he argument could be made that anyone” on the Supreme Court “with whom [Thomas] has discussed his wife’s involvement” in efforts to overturn the election “may have an improper interest,” Blumenthal said.
A report in The New York Times and a Washington Post story, both from June 2022, put Ginni Thomas in the thick of Trump lawyer John Eastman’s coup-plotting, potentially suggesting or even promising that they had a friend on the court. There are emails between the two and emails in which Eastman told a pro-Trump lawyer and Trump campaign officials that he was aware of a “heated fight” within the Supreme Court: “For those willing to do their duty, we should help them by giving them a Wisconsin cert petition to add into the mix.”
Clarence Thomas was viewed as an ally by Trump’s legal team, their “only chance” to have the election results overturned through the challenge to Georgia’s results. Trump attorney Kenneth Cheseboro wrote in an email on Dec. 31, 2020, that the team should frame a lawsuit over Georgia’s election result “so that Thomas could be the one to issue” an order “saying Georgia is in legitimate doubt.” Cheseboro added that Thomas was “our only chance to get a favorable judicial opinion by Jan. 6,” which “might hold up the Georgia count in Congress” and thus delay Congress from certifying the election result.
There’s also the issue of precedent with Thomas and pro-Trump opinions. When the House Jan. 6 committee sought to obtain White House records, Thomas was the lone justice to argue against that access.
Hell yes, Thomas should be recusing from considering this petition. And Chief Justice John Roberts should show that the supposed code of ethics the court said it was adopting actually does something by leaning on Thomas to step back.
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