Senate Democrats are calling on conservative Supreme Court Justice Clarence Thomas to recuse himself from ruling on former President Trump’s claim that he is immune from prosecution for alleged crimes he committed while in office.
Senate Judiciary Committee Chair Dick Durbin (D-Ill.) and other Democrats on the panel argue that Thomas faces a conflict of interest because his wife Ginni was outspoken in support of Trump’s false claims that the 2020 presidential election was stolen.
“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,” Durbin said.
Durbin added that “of course” he is concerned that the conservative-leaning Supreme Court, to which Trump appointed three justices, could wind up ruling that the former president is immune from prosecution by special counsel Jack Smith or Fulton County District Attorney Fani Willis (D) over actions he took while president to block the peaceful transfer of power in 2021.
“If we say certain people are above the law, I believe it diminishes values in this country,” he said.
Durbin and other Senate Democrats are stepping up pressure on Thomas to recuse himself from hearing Trump’s immunity claim because they don’t have much faith that Chief Justice John Roberts would enforce ethical or recusal guidelines among members of the court.
“When they came back with their supposed code of conduct, it didn’t address recusal like we did in the bill that we passed,” he added, referring to the Supreme Court Ethics, Recusal and Transparency Act, which the Senate Judiciary Committee advanced in July.
Durbin made his comments after Smith, the special counsel, asked the Supreme Court on Monday to consider and issue a speedy ruling on Trump’s immunity claim.
Trump’s trial on four felony counts charging him with attempting to subvert democracy is scheduled to begin March 4.
The Supreme Court has ordered Trump’s lawyers to respond to Smith’s request by Dec. 20.
Sen. Richard Blumenthal (D-Conn.) said Ginni Thomas’s support for the pro-Trump crowd that demonstrated on the National Mall on Jan. 6, 2021, some of whom later stormed the Capitol, raises serious concerns about the prospect of Justice Thomas ruling on a federal prosecution of Trump.
Blumenthal noted that the special counsel’s case against Trump for trying to overturn the results of the 2020 election “concerns Jan. 6, which involved [Thomas’s] wife.”
Blumenthal also said “the argument could be made that anyone” on the Supreme Court “with whom [Thomas] has discussed his wife’s involvement” in efforts to overturn the election “may have an improper interest.”
Ginni Thomas texted Trump’s chief of staff, Mark Meadows, after the 2020 election urging him to contest President Biden’s victory and later attended the pro-Trump rally that took place before protesters stormed the Capitol in a failed effort to stop the certification of the election results.
She urged Meadows to help Trump “stand firm” in opposing the results of the election and claimed “Biden and the Left is attempting the greatest Heist of our History.”
Sen. Mazie Hirono (D-Hawaii), another member of the Judiciary Committee, said Justice Thomas has both a conflict of interest and the appearance of a conflict of interest in any case about Trump’s efforts to subvert the 2020 election.
Hirono said “recusal usually applies when there’s an actual conflict and when there’s an appearance of conflict.”
“I think in Clarence Thomas’s case, it’s both,” she added.
Hirono said Thomas should have recused himself from other matters, such as his grant of a stay on a lower court order that would have required Sen. Lindsey Graham (R-S.C.) to testify before an Atlanta special grand jury about efforts to overturn the 2020 election results in Georgia.
“I think Justice Thomas should have recused himself from some of the other cases that came before him where his wife was very much involved. The fact he didn’t really raises concerns for whether they have a recusal practice that makes any kind of sense,” Hirono said.
Graham, the ranking Republican on the Senate Judiciary Committee, said Tuesday that it’s up to Justice Thomas whether he should recuse himself from hearing arguments about Trump’s legal immunity.
“I’m sure Clarence Thomas will make his own decision,” he said.
Sen. Mike Lee (R-Utah), another member of the Judiciary panel, dismissed the Democrats’ calls for Thomas to recuse himself as “absurd.”
“They’re not the ones to make that judgment call, nor am I aware of any standard by which he should be required to recuse himself in such a case. That’s absurd,” he said.
Other Democrats said the call for Thomas to step away from cases involving Trump “makes sense” given his wife’s outspoken political advocacy for the former president.
“It seems to make sense. Certainly the Supreme Court has a very poor record of taking its recusal responsibility seriously and being transparent about their rationale,” said Sen. Sheldon Whitehouse (D-R.I.), the chair of the Senate’s Federal Courts and Oversight Judiciary Subcommittee.
Washington, D.C., District Court Judge Tanya Chutkan on Dec. 1 rejected Trump’s sweeping immunity claims.
“Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-jail-free’ pass,” Chutkan wrote.