There was a telling exchange today on CBS’ Face the Nation when host Margaret Brennan asked J6 Committee member Rep. Adam Schiff (D-CA) about issuing a subpoena of Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. I have previously written how the calls for Justice Thomas to resign or be impeached are wildly out of line with ethical and constitutional standards. What was interesting, however, was how Schiff justified such an unprecedented subpoena: to question her about one of Thomas’ opinions dealing with the authority of Congress to investigate what occurred on that day.
The House was previously given the messages by Ginni Thomas, including 29 messages from November 2020 to mid-January 2021. They were part of over 2300 text messages sent to the Committee by White House chief of staff Mark Meadows. That turning over of the messages was the subject of press coverage in December 2021 before the January 19, 2022 opinion with the sole dissent of Thomas.
Here is the exchange:
MARGARET BRENNAN: Your colleague Liz Cheney was on two other networks this morning, and she said that you all are discussing a potential subpoena for Ginni Thomas, who is married to Supreme Court Justice Clarence Thomas. Are there lines that shouldn’t be crossed here when it comes to the Supreme Court? Because one of the objections to the premise of a subpoena here is that it- it sets a dangerous precedent by putting the spouse of a justice in this political forum.
REP. SCHIFF: There are lines that shouldn’t be crossed, but those lines involve sitting Supreme Court justices, not presiding or appearing or taking action in cases in which their spouse may be implicated. And in this case, for Clarence Thomas to issue a decision, in a case, a dissent in a case where Congress is trying to get documents, and those documents might involve his own wife, that’s the line that’s been crossed. And I think, for Congress to be looking into these issues, looking into conflict of interest issues. But here, looking into issues, whether it involves the wife of a Supreme Court justice or anyone else, if they have information or role in an effort to overturn an election. Yes, they’re not excluded from examination.
MARGARET BRENNAN: It sounds like you’re saying you favor that subpoena?
REP. SCHIFF: Well, if she has relevant information or investigation, we hope she comes in voluntarily. But if she doesn’t, then we should give that a serious consideration. And, yes, I think those that we decided have important enough information should be subpoenaed.
Schiff clearly states that the interest of the Committee is to use Thomas’ spouse to explore a prior opinion in an election-related case. Rep. Liz Cheney (R., Wy) has also stated that the Committee might subpoena Ginni Thomas.
Various politicians and pundits have suggested that Thomas could 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.
Yet, Schiff stripped away the pretense of subpoenaing Ginni Thomas about her messages to the White House. This is about her husband, not her support for the election challenges or what occurred on January 6th.
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.
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.
On a committee that was tasked with uncovering what occurred on January 6th, Schiff is now saying that the committee’s jurisdiction would extend to what the Supreme Court did a year later. That is more than a case of “mission creep.” It is a radical departure from past practices and long-standing interbranch comity. It could create dangerous precedent as members use such committees to investigate jurists on the motivations or communications leading to their opinions.
Once again, members like Schiff appear to be tossing caution to the wind to appeal to core constituencies. How exactly will Schiff and the Committee investigate Justice Thomas’ motivations and actions? It would have to demand disclosures of his spousal communications. It would also threaten perjury or contempt charges if Ginni Thomas is not accurate in her details.
The use of the J6 Committee in this way would reaffirm the criticism of the committee as a partisan exercise. The fact that Cheney has joined in such calls only highlights the absence of even a modicum of balance on the committee. It would also constitute one of the most intrusive acts ever taken against the Court outside of a formal impeachment proceeding.
It is a threat that should be universally condemned and immediately withdrawn.