It is often said that “if the only tool you have is a hammer, every problem looks like a nail.” In modern American politics, it often seems like the only tool is impeachment and every controversy instantly becomes a high crime and misdemeanor. Donald Trump was impeached not once but twice. Not long after Justice Brett Kavanaugh was confirmed, Democrats like then-Sen. Kamala Harris and Sen. Elizabeth Warren demanded his impeachment. Others demanded the impeachment of Attorney General Bill Barr and cabinet members.
Associate Justice Clarence Thomas is only the latest addition to that ever-lengthening list. In reality, the calls for his impeachment are entirely disconnected from any constitutional or logical foundation. Rather, the Thomas controversy shows how the impeachment mantra has become a raging impeachment addiction.
Rep. IIhan Omar (D., Minn.) was the first member of Congress to call for Thomas to be impeached when it was revealed that the Jan. 6th Commission found 29 messages of his wife, Ginni, to the White House. MSNBC’s Mehdi Hasan echoed the call for impeachment as did former Sen. Barbara Boxer and others.
A well-known Republican activist and Trump supporter, Thomas encouraged then-White House chief of staff Mark Meadows to pursue legal and legislative challenges to what she viewed as a stolen election.
She was not alone. Millions of Republicans believed that the election was rigged and many still do. The reason that Ginni Thomas’ messages were seized is not because she was a key figure in the investigation but that the Commission has demanded any messages that deal with such challenges or the rally — a scope that has been criticized as overbroad. Congress then leaked the messages and the media did the rest.
There is no evidence that Ginni Thomas ever encouraged violence or was even present at the Capitol during the riot. Thomas said that she attended the Ellipse rally on Jan. 6 but left early, before Trump spoke, and never went to the Capitol.
Even in the age of the “snap impeachment,” this is little more than a snap judgment on a poorly understood record.
First, these figures are calling for Thomas to be impeached for violating the Judicial Code of Ethics because he voted on a challenge to the Commission obtaining White House messages and emails. (For the record, I publicly stated that the Commission should prevail on those demands). In January, the House won an 8-1 victory before the Supreme Court, which rejected Trump’s privilege objections to the release of White House materials. There was only one dissenting vote: Thomas.
However, the justices have long insisted that they are not compelled to follow the Code of Judicial Conduct. I have long disagreed with that view and have called for Congress to mandate the application of the code to the Court. Yet, the Court has maintained that such conflict rules are not mandatory and many have refused to recuse themselves in circumstances that were flagged as possible violations.
For its part, Congress has decided not to mandate compliance with these rules. While federal law (28 U.S. 455) requires judges to recuse from cases where “impartiality might reasonably be questioned,” the Supreme Court itself ruled that while it “defines the circumstances that mandate disqualification of federal judges, it neither prescribes nor prohibits any particular remedy for a violation of that duty.” It remains largely discretionary and Congress has decided not to mandate compliance of justices with the Code itself.
Nevertheless, the members and experts insist that Thomas should be impeached for not following a rule that has been effectively treated as discretionary by both the Court and Congress.
Second, it is not clear that this was a violation. There is nothing in these messages that put Ginni Thomas in legal peril. She was not only engaging in political advocacy but stating the same position that she has largely maintained in public. Indeed, in calling for Justice Thomas’ impeachment, Vanity Fair acknowledges “For anyone familiar with Ginni Thomas, the idea that she would write and send a series of batshit-crazy text messages should not come as a surprise.” Yet, the column suggests that somehow Justice Thomas was seeking to prevent such “unsurprising” positions from being added to her well-known positions in the public record.
Third, it appears that the January case was immaterial to the release of the Thomas messages. As the New Yorker admitted, “Meadows had already turned over to the congressional committee some 2,300 texts — and … they included the 29-message exchange between him and Ginni Thomas.” Thus, the messages of his wife were already disclosed when Justice Thomas was voting in the case. Indeed, Congress could have subpoenaed those messages directly from Ginni Thomas without facing executive privilege barriers.
Even if recusal in January would have avoided an “appearance” of a conflict, the failure to take such a discretionary act to avoid an appearance of a conflict hardly suggests an impeachable offense.
Nevertheless, media and legal experts are clamoring for impeachment. The most ironic may be Boxer. Ginni Thomas has been called a “colluder” for calling for a challenge to the certification of the election victory of President Joe Biden.
The prior organized challenge to certification was led by Sen. Boxer. In January 2005, she joined former Rep. Stephanie Tubbs Jones to challenge George W. Bush’s victory over Democratic challenger John Kerry in the state of Ohio. She argued that Republicans stole the election. Sound familiar?
The media and Democratic leadership was highly supportive. Indeed, many who are condemning the challenge today heaped praise on Boxer. Speaker Nancy Pelosi praised Boxer’s challenge as “witnessing Democracy at work. This isn’t as some of our Republican colleagues have referred to it, sadly, as frivolous. This debate is fundamental to our democracy.”
That act so “fundamental to our democracy” is now being cited as evidence that Ginni Thomas is potentially liable for her advocacy with the White House. Nothing in these messages supports such liability. Absent additional evidence (which has notably not been leaked), these messages show a spouse of a justice engaged in protected political speech.
None of that matters, of course. Women’s March Executive Director Rachel O’ Leary Carmona who called for impeachment and declared that “the revelations that Ginni Thomas advocated for the overthrow of our democracy are disqualifying — not just for her … but for her husband. He is hopelessly compromised, conflicted and corrupt, and he must be impeached immediately.”
It does not matter that Ginni Thomas did not advocate the overthrow of the nation in these messages but rather the same type of legal and legislative challenges used in the past by Democrats. More importantly, she is not a mere extension of her husband. She has stressed that she and her husband keep their professional lives separate as do many such couples in Washington. Indeed, women who have marched throughout the ages have fought for such separate identities.
The calls for the impeachment of Justice Thomas are ludicrous but there is nothing laughable about the impeachment addiction fueling this frenzy. People of good faith can disagree on the need of Thomas to recuse himself from certain Commission-related cases. However, impeaching Thomas based on these grounds would expose all justices to the threat of politically motivated impeachments as majorities shift in Congress. That is precisely what the Framers sought to avoid under our Constitution.