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’s order ordering Sen. Lindsey Graham (RS.C.) to comply with a subpoena to testify before a grand jury in Fulton County, Ga. The district attorney is conducting a criminal investigation into parties involved in the attempt to overturn the results of the 2020 presidential election.
In government, even Alexander Hamilton’s “least dangerous” branch – 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 might reasonably be questioned” or his spouse “is known by the judge to have an interest which could be materially affected by the outcome of the proceedings.”
The law says “shall” – which means it’s not discretionary. Congress has imposed on federal judges an obligation to disqualify themselves if their impartiality could reasonably be questioned. It doesn’t matter whether Thomas issued Graham’s desired reprieve or refused it; he was not supposed to govern at all.
Unfortunately, the law does not include any method to enforce it. Obedience to the law therefore depends on the honor of the judge or justice. Any justice in Thomas’s position who worried about the Supreme Court’s legitimacy — or his own integrity — would have recused himself.
As for Graham’s attempt to avoid complying with the subpoena, he has no legal basis on which to stand. The Constitution’s Speech and Debate Clause, on which Graham relies, is intended to protect the words and actions of federal lawmakers that relate to their legislative duties. Graham was clearly not on a legislative mission on November 13, 2020, when he phoned Georgian Secretary of State Brad Raffensperger and asked questions that Raffensperger understood to be “how many votes [he] could throw” to help Trump.
The lower court order that Thomas stayed gave Graham the right to claim his legislative privilege on a question-by-question basis when he testifies. So why fight summons? What is he afraid of?
Thomas’ stay is temporary; the final decision will be made by the full court. There are many reasons why even the court’s conservative majority will follow the established rule that gives grand juries wide latitude to investigate criminal cases and enforce those subpoenas.
Even with a temporary stay, Thomas cannot legally thumb his nose at the federal ban on participating in court decisions where a reasonable person might question the lawyer’s impartiality. Admittedly, this is in question because his wife was one of MAGA’s top operatives actively promoting the “big lie” that the 2020 election was fraudulent.
Virginia “Ginni” Thomas attended the January 6, 2021 rally where President Trump unleashed the storming of the US Capitol. And weeks before, she had texted Trump’s White House chief of staff, Mark Meadows, at least 29 times, urging him to reverse the voters’ verdict on Trump. “Help this great president stand firm, Mark!!! … Biden and the left [are] attempt the biggest robbery in our history.
When Meadows replied that he had “staked [his] career on that,” Thomas replied gratefully, “This plus a conversation with my best friend earlier…I’ll try to keep holding on. (She didn’t say who her “best friend” was.)
In another email to Meadows, she referenced the “Biden crime family” and “voter fraud co-conspirators…being arrested and detained for voter fraud at this time…to face military tribunals for sedition”.
In November and December 2020, Ginni Thomas also emailed Republican lawmakers in the states of Wisconsin and Arizona, falsely telling them that the power to choose voters belonged “and to them alone.” His messages dovetail perfectly with the untenable “independent state legislature” theory currently before the Supreme Court and promoted in December 2020 and January 2021 by Trump attorney John Eastman. Eastman was a former Supreme Court clerk for Justice Thomas.
Notably, media reports of Ginni Thomas’ September 29 testimony before the January 6 House Select Committee contain no denials that she passed Eastman communications to her husband. His opening statement to the committee read, “I haven’t spoken with [my husband] at all on the details of my post-election activities. The Washington Post and New York Times quoted an evasive quip from his statement: “It is laughable for anyone who knows my husband to think that I could influence his jurisprudence – the man is independent and stubborn.
Clarence Thomas was certainly stubborn when he refused to recuse himself from Graham’s case as federal law requires him to do.
Laurence H. Tribe is professor emeritus at Carl M. Loeb University and professor emeritus of constitutional law at Harvard Law School. Dennis Aftergut is a former federal prosecutor and currently an attorney for Lawyers Defending American Democracy.
This story originally appeared in the Los Angeles Times.
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