Consider This from NPR - Legal Experts Say Justice Thomas Should Recuse Himself From Jan. 6th Cases

Episode Date: March 30, 2022

Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, is a longtime conservative activist who has been public about her views and support of former President Donald Trump. And text messages that surfaced last week showed that she went as far as peddling falsehoods about the 2020 election directly to former White House staff and urging them to overturn President Joe Biden's victory. Earlier this year, Clarence Thomas was the sole dissenter as the Supreme Court ruled to give a House select committee investigating the January 6th attack access to White House communications during that period. NPR's Nina Totenberg reports on why this possible conflict of interest is a true dilemma for the court and spoke with legal experts about what should happen next. In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for NPR comes from NPR member stations and Eric and Wendy Schmidt through the Schmidt Family Foundation, working toward a healthy, resilient, secure world for all on the web at theschmidt.org. So during an interview in 2018, Supreme Court Justice Clarence Thomas described how he saw his role as a justice on the highest court. I have an obligation because I am a judge. I'm an Article III judge. That as a judge, you don't get to be on one team or the other. You have to think independently in order to live up to the oath that you take. The interview was for the right-wing site, The Daily Caller.

And the interviewer, well, it was Justice Thomas' wife, Ginny Thomas. I'm the best part of being a justice. First of all, it'd be impossible without you. I have to be honest. I mean, it would be,

it's sort of like, how do you run with one leg? You can't. That comment raised some eyebrows because Ginny Thomas is a longtime conservative activist whose views became more public through her ardent support of former President Donald Trump. Later in 2018, on CNN, conservative political commentator Bill Kristol brushed off that remark from Justice Thomas. I don't think there's really a story here. There's zero evidence that Justice Thomas has voted some way on a case because of his wife's views.

I mean, he's a very consistent justice. Yeah, about that. This notion that there is complete separation between Justice Thomas' work and his wife's work, well, that's a notion that is coming back into question. Ginny Thomas wrote to Mark Meadows, quote, help this great president stand firm, Mark. You are the leader with him. The majority knows Biden and the left are attempting the greatest heist of our history. Last week, CBS and The Washington Post were first to report that Ginny Thomas had sent that message to former White House chief of staff Mark Meadows, shortly after the 2020 election. In the weeks following Trump's loss, she sent a total of 29 messages to Meadows, many pushing false election claims and conspiracy theories. And the text messages show how Ginni Thomas was encouraging Mark Meadows

to put pressure on the legislative branch, Congress. These messages came to light as part of the whole House investigation into the January 6th Capitol attack. On the one hand, there's Ginny Thomas, the political activist, who has, you know, certainly what I would describe as extreme views, but views that, of course, she has a constitutional right to have. Stephen Vladeck is a law professor at the University of Texas at Austin, and he told NPR that while Ginny Thomas is entitled to her views, what's more concerning is what happened earlier this year. When the Supreme Court authorized the House Select Committee to access Trump White House records, like, say, text messages to high-level staff, Clarence Thomas cast the only dissenting vote. There really aren't sufficient number of ethical rules that apply to the Supreme Court. And there's no enforcement mechanism for those rules that do.

Consider this. Ginny Thomas's newly revealed texts have pulled her and her husband into even murkier ethical waters. And legal experts who spoke with NPR agree on one thing. That is, Justice Clarence Thomas should recuse himself from future January 6th-related cases. I don't know how someone could be impartial when their spouse is part of the record that may be before the judge. From NPR, I'm Elsa Chang. It's Wednesday, March 30th. This message comes from WISE, the app for doing things in other currencies. Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate with no hidden fees. Download the WISE app today, or visit WISE.com. T's and C's apply.

It's Consider This from NPR. Throughout the years, the political leanings of jenny thomas have been no secret hi i'm jenny thomas a lot of people know me because of my husband who's on the supreme court but the truth is i'm my mother's daughter my mother was a reagan delegate in 1968 to miami and and i caught the bug when I was a teenager. That was from an endorsement video she made for Republican Senator Ted Cruz of Texas during his 2016 run for president. And as Thomas said, she was raised in a strong Republican household. At one point, she aspired to be a member of Congress, but her life took a turn when she

married Clarence Thomas, and she pivoted to a different role within conservative circles. But what I really love are the people outside of this beltway of Washington and the people who see we can have a strong America again. While she did initially endorse Cruz, Thomas became a dedicated and vocal supporter of Trump after he won the 2016 election, which was evident in those text messages between her and former White House Chief of Staff Mark Meadows. She has actively pushed false claims about the 2020 election and used her proximity to the White House to fight against President Biden's win. It's extraordinary. This is a pipeline between the spouse of a Supreme Court justice, the judicial branch, and the chief of staff at the White House. That's Robert Costa, a CBS News correspondent who was one of the reporters who broke the story about these text messages last week.

And while the potential conflict of interest is quite clear, what should come next is uncharted territory. So we asked NPR legal affairs correspondent Nina Totenberg to unpack the ethical questions this has brought to the surface. The modern-day code of judicial conduct assumes that married couples have separate careers and opinions. Legal ethics experts have long taken the view that while Mrs. Thomas is an outspoken conservative activist, her husband is able to act as an independent judge on matters that come before the court, even those matters that may touch on subjects of interest to Mrs. Thomas. But in the aftermath of the 2020 election, while Jenny Thomas was actively strategizing with the White House chief of staff on overturning the

election results, Justice Thomas was repeatedly participating in cases that came to the court, either directly or indirectly involving those election results. One of these was the court's decision in January requiring that Donald Trump's White House records be turned over to the House Committee investigating the January 6th riot at the Capitol. Only one justice disagreed, Clarence Thomas. Mrs. Thomas's newly released texts and her husband's failure to recuse himself in the congressional subpoena case have pulled the couple into an ethics vortex. Richard Painter was the ethics lawyer for the George W. Bush White House. The subpoena of documents when his wife's own texts are among the pile of documents responsive to the subpoena. And that's a slam dunk he had to recuse. He didn't. I'd want to know why.

James Alfini is the Dean Emeritus of South Texas College of Law and author of a book on judicial ethics. I don't think he wanted his wife to be embarrassed by any revelations that might come as a result of the granting of the subpoena. I don't think he wanted himself to be embarrassed by any of those revelations. NYU law professor Stephen Gillers is the author of a leading text dealing with judicial ethics. It was his obligation as a justice under the recusal statute to ensure that nothing she has been doing warranted his recusal. He could not, in other words, maintain a kind of false ignorance, closing his ears. All of these experts on judicial ethics previously had expressed views supporting the Thomas's separate lives. But this time, all say Mrs. Thomas crossed the line. And so very likely did her husband in not recusing himself from cases that came to the court involving

election challenges brought by Trump and his allies. I think this is different. Charles Guy is a leading ethics professor at the University of Indiana, Bloomington. I don't know how someone could be impartial when their spouse is part of the record that may be before the judge. Guy notes that the federal recusal statute requires a judge to step aside when he has knowledge of disputed facts in a case, and Ginny Thomas's texts were, in the end, part of the larger factual record that was produced pursuant to the congressional subpoena. Painter is more blunt. He should make it clear that he's going to recuse from all of these January 6th cases at this point. There is, however, no way to force Justice Thomas to do that. The court has made clear it is

different from other courts because it's a court of nine. Nobody can sub in for a recused justice, and a tie vote would mean that a case is not resolved. Moreover, under long-standing practice, each justice decide for him or herself when to recuse. So what's the recourse if a judge goes rogue? Impeachment is the only recourse, and that would be, as Professor Alfini puts it, folly. Only one justice has ever been impeached, and he was subsequently acquitted. Chief Justice John Roberts could have a private conversation with Thomas. Roberts and other members of the court have been desperately trying to persuade the public that the court is not a partisan institution. But public opinion surveys indicate that public approval of the court has dropped precipitously, from 68 percent in 2019 to 40 percent last fall.

Legal ethics experts seem to agree that now is the time for the court to write its own ethics rules. And one of the rules might be to create a mechanism for a justice who is unsure about recusal to submit the question to the other members of the court. It may not be an ideal solution, but neither is the current status quo. That was NPR legal affairs correspondent Nina Totenberg. Additional reporting in this episode was from NPR congressional reporter Claudia Grisales. You're listening to Consider This from NPR. I'm Elsa Chang. Support for NPR and the following message come from the Kauffman Foundation,

providing access to opportunities that help people achieve financial stability, upward mobility, and economic prosperity, regardless of race, gender, or geography. Kaufman.org. Support for NPR and the following message come from Carnegie Corporation of New York, working to reduce political polarization through philanthropic support for education, democracy, and peace. More information at carnegie.org.