Supreme Court Justice Clarence Thomas is facing calls from a growing number of Democrats who say he should recuse himself from a case examining former president Donald Trump’s presidential immunity, with more members of Congress raising concerns about the justice’s ability to remain impartial given his wife’s involvement in the movement to overturn the 2020 election results.
The immunity case is the latest test of the court’s recently released code of conduct. Last month, all nine justices, including Thomas, signed onto the 14-page document outlining how they should behave and perform their official duties.
Trump has been charged with four counts related to conspiring to obstruct the results of the 2020 election. His lawyers argue that presidential immunity shields him from prosecution. U.S. District Judge Tanya S. Chutkan ruled against him in December. Trump appealed the decision, and special counsel Jack Smith asked the Supreme Court last week to expedite the process. Trump’s lawyers have until Wednesday to respond to Smith’s request.
In a new letter, eight House Democrats, led by Rep. Hank Johnson (Ga.), the top Democrat on the House Judiciary Committee’s courts subcommittee, are calling on Thomas to recuse himself in the case, citing the court’s new code of conduct’s guidance on impartiality.
Specifically, they raised concerns about Thomas’s wife, Virginia “Ginni” Thomas, whose conservative activism has set her apart from other spouses of Supreme Court justices.
Ginni Thomas, who previously insisted that her work is separate from that of her husband, pressed the Trump White House and lawmakers to overturn Joe Biden’s 2020 victory — exchanging more than two dozen text messages with Trump White House Chief of Staff Mark Meadows to pursue overturning the election in the weeks after the vote. She corresponded with lawyer John Eastman, who had advocated a fringe legal theory that Vice President Mike Pence could block the certification of Biden’s electoral college win. She attended the Stop the Steal rally before the Jan. 6, 2021, Capitol attack and told the House committee investigating the attack last year that she still believed the 2020 election was stolen.
Ginni Thomas also signed on to a letter stating that she believed the committee was engaging in “overtly partisan political persecution.” And a month later, the Supreme Court rejected Trump’s request to deny the committee White House records that Biden had ordered be released. Instead of recusing himself from the case, Clarence Thomas was the only justice to say he would grant Trump’s request.
The letter from Democrats, dated Dec. 15, says Ginni Thomas’s actions after the election “raise serious questions” about her husband’s “ability to be or even to appear impartial in any cases before the Supreme Court involving the 2020 election and the January 6th insurrection.”
“If you want to show the American people that the Supreme Court’s recent Code of Conduct is worth more than the paper it is written on, you must do the honorable thing and recuse yourself from any decisions in the case of United States v. Trump,” the lawmakers state.
Besides Johnson, the letter was signed by Reps. Jamie B. Raskin (Md.), Madeleine Dean (Pa.), Sheila Jackson Lee (Tex.), Alexandria Ocasio-Cortez (N.Y.), Gerald E. Connolly (Va.), Daniel S. Goldman (N.Y.) and Jasmine Crockett (Texas).
Several Democrats on the Senate Judiciary Committee say Thomas should recuse himself from the case.
On Monday, the offices of Democratic Sens. Laphonza Butler (Calif.) and Peter Welch (Vt.) told The Washington Post that they think Thomas should recuse himself from the case. In statements, Sens. Sheldon Whitehouse (D-R.I.) — who declined to say whether Thomas should recuse himself — and Welch called for Congress to pass legislation that creates enforceable standards for the recusal of Supreme Court justices.
Judiciary Committee chairman Sen. Richard J. Durbin (D-Ill.), told the Hill last week, “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.”
Thomas did not immediately respond to a request for comment Monday morning.
The court’s code of conduct emerged after months of scrutiny over the justices’ relationships with wealthy Republican donors and a prominent judicial activist. Thomas, in particular, has been criticized for his failure to disclose a number of gifts, transactions and trips — including that his friend and benefactor, Harlan Crow, gave the justice luxury travel, paid the private school tuition for one of Thomas’s relatives and engaged in a real estate deal with him.
In ProPublica’s latest investigation into potential conflicts of interest within the nation’s highest court, published Monday, the outlet described Thomas’s private complaints about money that led to fears of his resignation more than 20 years ago. Thomas reportedly told then-Rep. Cliff Stearns (R-Fla.), whom he was seated next to on a plane in 2000, that Congress should give Supreme Court justices a pay raise. If lawmakers didn’t act, Thomas reportedly said, one or more justices would soon leave, and the congressman left the conversation fearing that Thomas might resign. In other conversations, Thomas reportedly discussed removing a ban on justices to give paid speeches.
Thomas’s efforts were detailed in records obtained by ProPublica, including a confidential memo to then-Chief Justice William Rehnquist from a top judiciary official seeking guidance on what he called a “delicate matter.”
The code of conduct asks the justices to disqualify themselves from a case if their “impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”
If a justice or their spouse has “an interest that could be substantially affected by the outcome of the proceeding” or is “likely to be a material witness in the proceeding,” the ethics code, published Nov. 13, suggests recusal.
The decision to recuse, however, is up to the justice.
While it’s unclear whether Thomas will recuse himself from the Trump immunity case, he did make the rare decision to do so in October when the court denied an appeal by Eastman, his former clerk and the architect of the former president’s effort to steal the election. Thomas didn’t list a reason for his recusal.