Blumenthal Calls for Justice Thomas's Recusal in Trump January 6th Case

[WASHINGTON, D.C.] – U.S. Senator Richard Blumenthal (D-CT), a member of the Senate Judiciary Committee, called on Supreme Court Chief Justice John Roberts to ensure Justice Clarence Thomas recuses himself in proceedings in United States v. Trump given his wife Ginni Thomas’s efforts to overturn the 2020 election. Blumenthal’s letter comes as the Supreme Court considers special counsel’s request to rule on former President Trump’s immunity in the January 6^th case and as Trump has been requested to respond to the Court on an expedited basis.

“I urge you to ensure that Justice Thomas abides by federal statute and the Court’s own Code of Conduct and recuses himself from participating in United States v. Trump,” wrote Blumenthal, citing Eastman v. Thompson as an example of a previous instance in which Justice Thomas had rightly recused himself and calling on Thomas to provide an explanation if he does not recuse himself in this case.

“No proceeding could be graver than the prosecution of an attempt to undermine our sacred electoral process,” Blumenthal stressed. “Justice will be done only if such a case is heard by judges whose impartiality cannot reasonably be questioned.”

The full text of the letter can be found here and below.

December 20, 2023

The Honorable John G. Roberts, Jr.

Chief Justice

Supreme Court of the United States

1 First Street NE

Washington, DC 20543                                                                                      

Dear Chief Justice Roberts:

The Supreme Court is currently weighing whether to decide a critical question in United States v. Trump, a criminal case arising from former President Trump’s role in the January 6^th insurrection. Last week, the United States urged the Court to fast-track its consideration of “a fundamental question at the heart of our democracy”: whether former President Trump is immune from charges of conspiring to obstruct the certification of the 2020 electoral vote and overturn the results of the election.[1] The Court has asked former President Trump to respond on an expedited basis—by today at 4:00 PM.

I write to urge you to take appropriate steps to ensure that Justice Clarence Thomas recuses himself from consideration of the petition for certiorari and any future proceedings in United States v. Trump, or otherwise provides the public an “explanation of [his] recusal decision”[2] showing how his participation comports with judicial ethics and federal law.

The federal recusal statute requires that any “justice, judge, or magistrate judge … shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”[3] In addition, recusal is required when a Justice “or his spouse … is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; [or i]s to the judge’s knowledge likely to be a material witness in the proceeding.”[4]

In October, Justice Thomas followed this statute in recusing himself from participating in Eastman v. Thompson.[5] That case concerned whether attorney-client privilege shielded emails by defendant John Eastman regarding strategies to overturn the 2020 election results.[6] Eastman was a personal lawyer to former President Trump who received correspondence from Justice Thomas’s wife, Virginia (“Ginni”) Thomas, about efforts to overturn the election.[7] In fact, Mrs. Thomas has been deeply involved in former President Trump’s attempt to overturn the most recent presidential election, including by attending the January 6^th rally whose other attendees later stormed the Capitol,[8] sitting on the board of an organization that led the “Stop the Steal” movement,[9] and sending dozens of text messages urging White House Chief of Staff Mark Meadows to prevent certification of the election results.[10]

Given Mrs. Thomas’s involvement in challenging the 2020 election results, Justice Thomas’s impartiality in a related case “might reasonably be questioned,” giving rise, at a minimum, to an appearance of a conflict of interest.[11] Justice Thomas’s recusal in Eastman v. Thompson was therefore proper.

The same is true in United States v. Trump. Mrs. Thomas’s close interactions with senior Trump administration officials about overturning the 2020 election results—the very subject of the litigation—certainly creates circumstances where Justice Thomas’s “impartiality might reasonably be questioned.”

The Supreme Court’s recent adoption of a Code of Conduct only underscores the importance of recusal.[12] Although the Code very unfortunately does not provide any enforcement mechanism, it mirrors the statutory standard for recusal.  In lieu of an enforcement mechanism, the Code states that Justices themselves “must bear the primary responsibility for requiring [appropriate] judicial behavior.”[13] With trust in the Supreme Court near historic lows,[14] the need for this judicial responsibility has never been higher. As the Chief Justice, it is incumbent upon you to assure that the Code is followed to “dispel the misunderstanding” that “Justices … regard themselves as unrestricted by any ethics rules.”[15]

I urge you to ensure that Justice Thomas abides by federal statute and the Court’s own Code of Conduct and recuses himself from participating in United States v. Trump. No proceeding could be graver than the prosecution of an attempt to undermine our sacred electoral process. Justice will be done only if such a case is heard by judges whose impartiality cannot reasonably be questioned.

                                                                        Sincerely,

[1] Petition for Writ of Certiorari at 2, United States v. Trump (No. 23-3228).

[2] See Letter from Supreme Court Justices to Richard J. Durbin at 2 (Apr. 25, 2023), https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20Chairman%20Durbin%2004.25.2023.pdf.

[3] 28 U.S.C. § 455(a).

[4] 28 U.S.C. § 455(b)(5).

[5] Eastman v. Thompson, No. 22-1138, 2023 WL 6379015 (U.S. Oct. 2, 2023).

[6] Jacqueline Alemany et al., Trump Lawyers Saw Clarence Thomas as Key to Stop Biden Electoral Count, Emails Show, Wash. Post (Nov. 2, 2022), https://www.washingtonpost.com/politics/2022/11/02/trump-clarence-thomas-emails.

[7] Id.

[8] Danny Hakim & Jo Becker, Ginni Thomas Says She Attended Jan. 6 Rally, N.Y. Times (Mar. 14, 2022), https://www.nytimes.com/2022/03/14/us/politics/ginni-thomas-jan-6-rally.html.

[9] Id.

[10] Bob Woodward & Robert Costa, Virginia Thomas Urged White House Chief to Pursue Unrelenting Efforts to Overturn the 2020 Election, Texts Show, Wash. Post (Mar. 24, 2022), https://www.washingtonpost.com/politics/2022/03/24/virginia-thomas-mark-meadows-texts.

[11] 28 U.S.C. § 455(a).

[12] U.S. Sup. Ct, Code of Conduct for Justices of the Supreme Court of the United States (hereinafter Code of Conduct) (2023), https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf

[13] Id. at cmt.

[14] Megan Brenan, Views of Supreme Court Remain Near Record Lows, Gallup (Sept. 29, 2023), https://news.gallup.com/poll/511820/views-supreme-court-remain-near-record-lows.aspx.

[15] U.S. Sup. Ct., Code of Conduct, supra note 12, at statement.