No, Justice Thomas Did Not Commit an Impeachable Offense

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.

 

 

214 thoughts on “No, Justice Thomas Did Not Commit an Impeachable Offense”

  1. Turley’s extreme partisanship is now inarguably entrenched and this denigrates his writings into nothing but partisan blather; sadly, in deciding to become a pundit, he’s chosen poorly–never forget the words of Rick Wilson: “Everything Trump Touches Dies” (it’s also the title of his book). Turley’s hyperbole is pathetic: In his effort to defend Thomas against those who believe impeachment is warranted for dissenting against the disclosure of his wife’s emails to Trump’s chief of staff showing her support for the insurrection, Turley accuses Democrats of turning “every controversy” into an impeachable offense. Further, Turley cites the orange one’s two impeachments as some sort of example–of what, exactly? Excess Democrat partisanship? That dog won’t hunt.

    In another age, when Republicans were HONORABLE people and believed in the rule of law, Trump never have gotten away with cheating his way his way into office with help from Russia–Republicans would have voted to remove him just for this, but then, there’s the effort to leverage aid to Ukraine in a quid pro quo for faking up evidence against the Bidens because polls predicted Trump’s loss. Today’s Republicans make Nixon look like a choir boy by comparison. When Nixon’s involvement in Watergate was exposed, Republicans made clear to Nixon that if he didn’t resign, they’d remove him. Now, we have a former reality television host who praises the murderous dictator who helped him cheat his way into office, for whom he lobbied to try to get the dictator back into the G-7, who trashed the EU and NATO who still refuses to concede. This aberration continues to lie about his “landslide victory” being stolen with absolutely NO evidence, and goes on tours continuing to defend this lie, criticizing the sitting President. This one, and his media enablers, of which I count Turley, spout rhetoric that is so toxic that it’s broadcast as propaganda on Russian state television. You have a Congressional committee investigating the first attack against our Capitol by US Citizens, whose efforts are supported by the wife of a sitting SCOTUS Justice who voted against disclosing emails sent by his wife to support the insurrection. And…Turley’s criticizing Democrats?

    BTW: Turley: when are you going to admit you were wrong about the reason for the special prosecutors’ resignations from the Manhattan DA’s office?

    1. “You have a Congressional committee investigating the first attack against our Capitol by US Citizens”

      No one cares. The voters care about all the things the Dems and Biden have turned to sh*t for every hardworking American.

    2. The Commiecrats know full well that this is not an impeachable offense, well maybe not Idiot Omar who knows nothing about America except for all the money you can steal with no consequences, but they know the utter stupidity of the average voter out there. The Commies come up with this stuff, their media sucklings parrot it (also knowing the obvious stupidity of their followers) and the sheep swallow the whole load. So they win.

  2. Let us consider the case of a Wisconsin appellate court judge whop wife actually publicly praised the rioters in Kenosha for “fighting for racial justice”.

    Under what circumstances would the wife’s public statements ethically require this judge recuse himself from an appeal arising from the Kenosha riots?

    1. These weren’t public statements.

      If the WI judge’s wife had been privately exchanging messages with the local BLM organization staff about legal challenges and advocating that they use a specific lawyer, he’d be expected to recuse.

      Justice Thomas should also recuse because Ginni Thomas was privately exchanging messages about election challenges with the Trump Admin. Chief of Staff (and perhaps others, we don’t know) and advocating that Sidney Powell be used.

  3. “She was not alone. Millions of Republicans believed that the election was rigged and many still do.”

    How in the world can anyone blame them when Clinton, the media, big tech and democrats in congress all colluded, day in and day out for FOUR YEARS to manufacture a fake story that Putin rigged the election and that Trump was an illegitimate president? Believe me, if they could they would have stolen the election form Trump (and bragged about it too), does anyone seriously think they wouldn’t have?

    1. Indeed.

      That is why I never disagree with those who claim the 2020 election was stolen.

      Let those who pushed the Russian collusion narrative convince them that the election was not stolen.

      1. Damn right! If only they had looked at the quantum watermarks that Trump had secretly placed on the ballots …

    2. The Director of National Intelligence released a report about Russian interference in the 2016 election, “We assess Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election. Russia’s goals were to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump.”
      https://www.dni.gov/files/documents/ICA_2017_01.pdf

      That was not a “fake story.”

  4. Epstein’s First Law of Democrat Behavior: The Democrats will take whatever position they think will help them gain or maintain power.

  5. PUPPET ARMY DEFENDING THOMAS

    Early in the day these threads filled up quickly with numerous puppets claiming Clarence Thomas is sacred ground.

    The names kept changing but the message remained all-too-simple: ‘Only communists criticize Clarence Thomas’.

    The Blog Stooge, an Anti-Abortion zealot, will not tolerate ‘any’ comments questioning the integrity of Thomas and wfe Ginni. For that reason his puppets were out in full force. To discourage liberals from even bothering with this blog today.

  6. Justice Thomas is his own person. His wife is entitled to be her own person. People can have their own views regardless of who they are married to. Mrs. Thomas is evidently known for her activism and so the fact that she expressed views on this topic is no big surprise. Funny how democrats can cite how independent they are from their spouses when someone is investigating money like Nancy Pelosi’s husband. But can’t fathom how a woman known for her independence can be separated from her husband’s views.

    1. It’s irrelevant whether she’s “independent.” She’s a spouse, and the law specifies that the actions of spouses matter in decisions about recusal. Again:

      28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge

      (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
      (b) He shall also disqualify himself in the following circumstances: … (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: … (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; …

      1. You need to understand the meaning of the word interest in the context it is written based on the time frame. Ignorance is not an excuse.

  7. JT wrote a column for Hill newspaper yesterday that was more focused on the Thomas recusal issue and didn’t try to sidetrack that discussion with an impeachment narrative that JT clearly wanted to advance in this blog post. Not sure why JT didn’t simply post today by linking to the Hill column and providing a little upfront commentary or why he didn’t provide a link at all to the Hill column in today’s post.

    1. Nice selling job by your Ukraine Nazi/Marxist Authoritarians & their video torture tapes of Russians today & the US Dim/Rino cheering it on & everyone is seeing today!

      Nice job of showing the world what evil Azzholes you’ll all.

      Prof Turley, will you finally Denounce Biden/Harris/Schumer/McConnell, McCarthy Dims/Rinos & their supporters????

    2. Another NPC mindlessly vomiting that “everyone who disagrees with me is literally Putin.”

  8. I do not see how one can avoid the conclusion that these Democrats insisting on controlling Justice Thomas are anything but racists.

  9. “No, Justice Thomas Did Not Commit an Impeachable Offense”

    – Professor Turley
    ______________

    Abraham Lincoln did…

    and the judicial branch failed to impeach and convict Lincoln, and Justices failed treasonously to execute their sworn duty to “support” the literal Constitution. America hasn’t been the same since. Lincoln took America off of the Constitution and began the incremental implementation of the principles of the Communist Manifesto. If not impossible, It would require a herculean effort to get America back on the Constitution. All regulation other than that of the value of money, commerce among the States, and land and naval Forces would have to be eliminated. All regulatory agencies and departments of the government would have to be eliminated as enterprises and industries strictly self-regulate to avoid litigation and insolvency. Only owners would have the power to “claim and exercise” dominion over private property. Illegal segments of the population would have to be compassionately repatriated (oh, it’s happening, Sweetheart, they are compassionately repatriating out of Ukraine as we write). Once the communists (liberals, progressives, socialists, democrats, RINOs) conquer and control, escape is virtually impossible. Americans would have to be as tough as nails, as tough as Zelinsky, as tough as George Washington. Enjoy, comrades.

    Did they display the letter of congratulation and commendation from Karl Marx to Abraham Lincoln at the Lincoln Memorial?
    _________________________________________________________________________________________________

    “You can’t handle the truth.”

    – Colonel Jessup
    _____________

    Stop claiming to be Americans; Americans live under the Constitution, per the Framers and Founders, not some fabricated, artificial “living” document.

    The truth is that Americans really are free. Really. The “manifest tenor” of the Constitution provides complete freedom to individuals while it severely limits and restricts government. The principles of communism are not only generically illicit and deleterious, but antithetical and unconstitutional.

    Central Planning – Compulsory electric cars, solar panels, weaponization of tax codes
    Control of the Means of Production – Total regulation of enterprises and industries
    Redistribution of Wealth – Public assistance, benefits, entitlements in infinite forms
    Social Engineering – Matriculation affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, forced busing, “Fair Housing” laws, “Non-Discrimination” laws

    It can’t happen here, per the Constitution.

    Ultimately, Lincoln was impeached, convicted and sentenced, but he left America 180 degrees a– backwards in communism.

    1. No matter what Judge Jackson would have said, the alt-right media would have tried to use it against her in stirring up the disciples against transsexuals. She didn’t take the bait. This proves she’s smart.

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