There is a sad lesson for the law and the country in Supreme Court Justice Clarence Thomas’ Oct. 24 stay of a federal appeals court order for Sen. Lindsey Graham (RS.C.) to comply with a subpoena to order before to testify before a grand jury in Fulton County, Georgia. The local district attorney is conducting criminal investigations into the parties involved in an attempt to overturn the results of the 2020 presidential election.
In government, even Alexander Hamilton’s “least dangerous” arm – the judiciary – becomes dangerous when there is no enforcement mechanism behind a law.
Title 28, Section 455 of the United States Code is the federal law that applies to Thomas. It provides: “Every judge, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality could reasonably be questioned” or his spouse “is known to the judge to have an interest which the outcome of the case could materially affect”.
The law says “shall” – meaning this is not arbitrary. Congress has imposed a duty on federal judges to disqualify themselves when their impartiality could reasonably be challenged. It doesn’t matter whether Thomas has granted or rejected Graham’s residence permit; he should not rule at all.
Unfortunately, the law does not provide a method for enforcing it. Obedience to the law thus depends on the honor of the judge or magistrate. Any justice in Thomas’ position who was concerned about the legitimacy of the Supreme Court – or his own integrity – would have resigned.
As for Graham’s attempt to evade the subpoena, he has no legal leg to stand on. The speech and debate clause of the Constitution on which Graham relies is designed to protect the words and actions of federal legislators that relate to their legislative duties. Graham was clearly not on a legislative mission on November 13, 2020, when he called Georgia Foreign Minister Brad Raffensperger and asked what Raffensperger understood as “how many votes.” [he] throw out” to help Trump.
The lower court’s order that Thomas stay gave Graham the right to claim his legislative privilege on a question-by-question basis when he testified. So why fight the subpoena? What is he afraid of?
Thomas’ stay is temporary; the final decision is made by the General Court. There are many reasons why even the conservative majority of the court follows the firm rule that gives grand juries wide latitude to investigate criminal cases and enforce such subpoenas.
Even during a temporary stay, Thomas cannot legally turn his nose up at the federal ban on participation in court decisions in which a reasonable person could question the impartiality of the lawyer. That’s certainly arguable because his wife was a top MAGA agent who actively propagated the “big lie” that the 2020 election was fraudulent.
Virginia “Ginni” Thomas attended the January 6, 2021 rally where then-President Trump launched the storming of the US Capitol. And weeks earlier, she texted Trump’s chief of staff, Mark Meadows, at least 29 times, urging him to overturn voter judgment on Trump. “Help this great President stand firm Mark!!! … Biden and the left [are] attempts the greatest robbery in our history.”
When Meadows replied that he “staket [his] Career up,” Thomas replied gratefully, “That plus a chat with my best friend just now…I’ll try to keep going.” (She didn’t say who her “best friend” was.)
In another email to Meadows, she referred to the “Biden crime family” and “co-conspirators in voter fraud … who are being arrested and jailed for voter fraud … to stand before military courts on sedition charges.”
In November and December 2020, Ginni Thomas also emailed Republican lawmakers in Wisconsin and Arizona, falsely telling them that the power to choose voters is “theirs and theirs only.” Her messages fit neatly into the untenable theory of the “independent state legislature” now before the Supreme Court and promoted by Trump’s attorney John Eastman in December 2020 and January 2021. Eastman was a former court clerk for Judge Thomas.
Notably, media reports of Ginni Thomas’ September 29 testimony before the January 6 House Select Committee contain no denials that she forwarded communications from Eastman to her husband. Her opening statement to the committee read, “I haven’t spoken to him [my husband] at all the details of my activities after the election.” The Washington Post and the New York Times quoted an evasive joke from their testimony: “It is ridiculous for anyone who knows my husband to think that I could influence his jurisdiction—the man is independent and stubborn.”
Clarence Thomas was certainly stubborn when he refused to withdraw from Graham’s case, as federal law requires him to do.
Laurence H. Tribe is Carl M. Loeb University Professor Emeritus and Professor Emeritus of Constitutional Law at Harvard Law School. Dennis Aftergut is a former federal prosecutor and currently an advisor to Lawyers Defending American Democracy.
https://www.latimes.com/opinion/story/2022-10-26/clarence-thomas-lindsey-graham-subpoena-recuse Op-Ed: Justice Thomas refusal to recuse himself thumbs nose at the law