Below is my column on the calls for Supreme Court Justice Clarence Thomas to recuse himself from a wide range of cases. I have previously discussed the meritless calls for his impeachment over the controversy related to his wife’s emails to the White House after the 2020 election. There are legitimate concerns that Thomas should have recused himself from a January case if he knew that his wife’s messages were included in the material sought by the House investigation. However, experts have gone further to claim that he must recuse himself from a wide array of other cases, including any touching on the 2020 election. I do not agree with that assessment. In the meantime, Sen. Cory Booker (D., N.J.) is calling for an “investigation” into Thomas’ refusal to recuse himself, though he is vague on who would conduct such an investigation.
Here is the column:
Supreme Court Associate Justice Clarence Thomas may have been released from the hospital this week with a clean bill of health, but he was immediately met by a chorus of pundits and professors in a media frenzy calling for Thomas’s recusal from an array of cases. Rep. Ilhan Omar (D-Minn.) even called for Thomas to be impeached; others, like MSNBC’s Mehdi Hasan, echoed that call.
The reason? Thomas’s wife, Ginni, and her communications with White House staff before the Jan. 6, 2021, riot on Capitol Hill.
Earlier this year, the House’s Jan. 6 committee won an 8-1 victory before the Supreme Court, which rejected Trump’s privilege objections to the release of White House materials. The sole dissenting vote was cast by Thomas.
Soon after receiving the disputed emails and texts, the predictable leaks began from Congress, including 29 email and text messages from Ginni Thomas encouraging Trump’s then-White House chief of staff, Mark Meadows, to fight what she saw as a stolen election. Most of these messages preceded Jan. 6 and voiced such views as her Nov. 19, 2020, message to Meadows: “Sounds like [Trump attorney] Sidney [Powell] and her team are getting inundated with evidence of fraud. Make a plan. Release the Kraken and save us from the left taking America down.”
The leaks had their intended effect. The media exploded with strikingly similar headlines, like Salon’s “‘Extraordinary level of corruption’: Legal experts shocked by Ginni Thomas’ QAnon texts” and the New Yorker’s “Legal Scholars Are Shocked By Ginni Thomas’s ‘Stop the Steal’ Texts.” The airwaves again are filled with shocked experts doing their best Claude Rains interpretation for cable audiences.
As with many controversies, however, this story calls for a bit less shock and a bit more scrutiny.
Ginni Thomas is a prominent Republican activist. She has publicly stated that she and her husband keep their professional lives separate, as do many Washington couples.
When Ginni Thomas sent these messages, many Republicans believed the 2020 presidential election was stolen. (Indeed, only 21 percent of Republicans still believe Joe Biden was legitimately elected as president.) She and others were pushing for legal and political action to expose what they saw as voting fraud. I did not share that view and stated in 2020 that there was no evidence in these cases showing systemic fraud.
Democrats in prior — and later — years also have challenged election results and opposed the certification of presidential elections in Congress, and leading Democrats continue to call Trump an illegitimate president. What they did not do, of course, is riot in the halls of Congress — but neither did Ginni Thomas.
Thomas has insisted that she attended Trump’s Ellipse rally on Jan. 6 but left early, before Trump spoke, and never went to the Capitol. Still, her messages were within the broad scope of discovery sought by Congress and thus covered in the earlier case.
There is a legitimate concern over Justice Thomas voting on the case, given the interests of his wife. Thomas’s position on the case was consistent with his long-held robust views of executive privilege and powers; however, that would not negate his voting on a case with a conflict of interest.
Yet, there are countervailing factors, too.
First, Ginni Thomas was publicly supporting Trump in his election and post-election claims; the messages echo her publicly-stated views. Second, Congress was already receiving testimony and statements from figures like Meadows. Even if it did not secure these emails from the White House, it could independently seek Ginni Thomas’s messages, since she is not protected by executive privilege. Thus, a Court injunction would not have necessarily barred such disclosure.
Third, and most notably, the messages were already disclosed. That fact is buried in the New Yorker article, which noted that when the Court was considering the issue, “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.”
None of that means that a recusal was not warranted. If Thomas knew of his wife’s messages, recusal could have avoided the “appearance” of a conflict, even if all of the emails were previously disclosed. That is the standard governing recusal questions for lower court judges, although the justices — wrongly, in my view — maintain they are not controlled by the Code of Judicial Ethics.
It would not be enough to justify only the second impeachment of a justice in history, or to compel Thomas’s recusal from any further election- or Trump-related cases. The New Yorker cited “shocked” experts saying that Thomas must now recuse himself from a wide range of cases because “his wife … colluded extensively with a top White House adviser about overturning Joe Biden’s victory.” The “collusion” and “scheming” cited in the article was to advocate — just as many others did publicly — for legal and legislative challenges.
One of those experts was NYU professor Stephen Gillers, who declared: “I was prepared to, and did tolerate a great deal of Ginni’s political activism. Ginni has now crossed a line. Clarence Thomas cannot sit on any matter involving the election, the invasion of the Capitol, or the work of the January 6 Committee.”
Conversely, Gillers recently said there was no need for Judge Ketanji Brown Jackson to recuse herself from a Supreme Court case involving Harvard’s use of race for admissions, if she is confirmed as a justice. Thus, Jackson could sit on a case involving Harvard after serving (and continuing to serve in 2022) as a Harvard board member. Yet, according to Gillers, Thomas should recuse himself from any election-related case because his wife advocated for challenges to the election. (Judge Jackson, correctly in my view, decided recently that she would recuse herself from the Harvard case.)
Much of the ethical analysis seems driven by the characterization of these messages as “collusion” in “overthrowing an election” rather than political advocacy. For example, University of California/Irvine professor Richard Hasen concluded that, “given Ginni Thomas’s deep involvement in trying to subvert the outcome of the 2020 election based upon outlandish claims of voter fraud, and her work on this with not only activists but the former president’s chief of staff,” a sweeping recusal is necessary since “his spouse’s reputation, and even potential liability, is at stake.”
What liability? Ginni Thomas insists she was not trying to “subvert the outcome of the 2020 election” but, instead, to challenge what she viewed as a rigged election. She was wrong, in my view, but that is not a crime — it is protected speech. There is no evidence she advocated or participated in violence on that day, which is the purported focus of the committee. Her “interest” was the same as that of many Republicans who considered the election stolen.
Absent new damning evidence, these messages show constitutionally protected advocacy.
Even if Justice Thomas had decided to recuse himself from the earlier decision, there is no reason for him to recuse from any election-related or committee-related cases based solely on these messages from his wife.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.