The Supreme Court recently handed a temporary procedural victory to former President Donald Trump, in his effort to establish “absolute immunity” from prosecution for conspiracy to overturn the 2020 presidential election.
Special Prosecutor Jack Smith may have suffered only a minor setback when the court rejected his petition to review the immunity issue on an expedited basis. But the unanimous ruling revealed a greater problem hiding in plain sight.
By participating at even this early stage of the case, Justice Clarence Thomas indicated that he has no intention of recusing himself in Trump-related matters, such as the former president’s disqualification from the Colorado Republican primary ballot. This despite a clear conflict of interest, due to his wife’s involvement in subverting the 2020 election.
Trump initially presented his immunity claim to District Judge Tanya Chutkan, who is presiding over the case in Washington, D.C. She ruled against Trump, holding that the presidency does not “confer a lifelong ‘get-out-of-jail-free’ pass [for] federal criminal liability.” Trump immediately appealed to the District of Columbia Court of Appeals.
Figuring that the case was inevitably headed to the Supreme Court, Smith filed an unusual (though not unprecedented) petition for a writ of certiorari before judgment, seeking to bypass the appellate court to get the issue resolved as quickly as possible.
Trump predictably objected, conceding that the immunity issue “unquestionably warrants” Supreme Court review, but arguing that it should be “resolved in a cautious, deliberative manner — not at breakneck speed.”
Although Smith’s maneuver failed, and the immunity issue will now be addressed by the intermediate appellate court, he still put Thomas on the spot just by raising the Jan. 6 attack on the Capitol.
Eight Democrats in the House of Representatives, led by Rep. Hank Johnson (D-Ga.), framed the issue in a letter to Thomas, calling on him to recuse himself “from this and any other decisions in the case of United States v. Trump” because “Virginia (Ginni) Thomas was intimately involved in Mr. Trump’s alleged efforts to overturn the 2020 election and to obstruct its certification — the very conspiracies at issue in this case.”
For example, Virginia Thomas “attended the pro-Trump rally” conducted before the Jan. 6 attack, “was one of nine board members of a conservative political group that helped lead the ‘Stop the Steal’ movement” and “traded at least 29 text messages” with Trump’s chief of staff, encouraging him to “pursue unrelenting efforts to overturn the 2020 presidential election.”
As Johnson and his colleagues pointed out, the Supreme Court’s new Code of Conduct provides that a justice is disqualified from any proceeding in which their “impartiality might reasonably be questioned,” including when it’s known that the “Justice’s 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.”
Sen. Richard Blumenthal (D-Conn.) sent a similar letter to Chief Justice John Roberts.
The case for recusal is exceptionally strong by any standard. Virginia Thomas’s entanglement in the relevant events would, in the language of the Code of Conduct, surely cause an “unbiased and reasonable person who is aware of all relevant circumstances” to “doubt that the Justice could fairly discharge” his duties.
Thomas ignored the letters.
Under the court’s long-standing practice, reaffirmed in the commentary to the Code of Conduct, “Individual justices, rather than the Court, decide recusal issues.” Thus, Thomas alone determined that he could be objective regarding his own wife’s widely known and repeatedly expressed political interests.
Nor did Thomas explain his rationale for participating in the immunity case. In April, all nine justices signed and presented to the Senate Judiciary Committee a Statement on Ethics Principles and Practices, stating that in most cases justices “may provide a summary explanation of a recusal decision.”
According to a Westlaw search conducted on Dec. 26, Thomas has recused himself three times since April without explanation, most significantly in the case of his former clerk John Eastman. Nor has he ever, in three decades on the Supreme Court, explained any non-recusal, including two earlier cases arising from the 2020 election in which he cast the sole dissenting vote.
The recent ruling may seem fairly innocuous, with Thomas simply joining a one-sentence order denying Smith’s petition to skip the appellate court, while leaving the ultimate immunity question to be decided another day. However, disqualification provisions apply throughout a proceeding, including the certiorari stage.
By failing to recuse himself, Thomas has silently signaled that he plans to sit in the Trump election interference case, conflicts of interest — and Code of Conduct — be damned.
Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.
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