Several of the country’s most respected legal scholars say that Supreme Court Justice Clarence Thomas must immediately recuse himself from any cases relating to the 2020 election and its aftermath, now that it has been revealed that his wife, Virginia (Ginni) Thomas, colluded extensively with a top White House adviser about overturning Joe Biden’s victory over then President Donald Trump. On March 24th, the Washington Post and CBS News revealed that they had obtained copies of twenty-nine text messages between Ginni Thomas and Mark Meadows, the Trump White House chief of staff, in which she militated relentlessly for invalidating the results of the Presidential election, which she described as an “obvious fraud.” It was necessary, she told Meadows, to “release the Kraken and save us from the left taking America down.” Ginni Thomas’s texts to Meadows also refer to conversations that she’d had with “Jared”—possibly Trump’s son-in-law Jared Kushner, who also served as a senior adviser to the Administration. (“Just forwarded to yr gmail an email I sent Jared this am.”)
Stephen Gillers, a law professor at N.Y.U. and a prominent judicial ethicist, described the revelations as “a game changer.” In the past, he explained, he had supported the notion that a Justice and his spouse could pursue their interests in autonomous spheres. “For that reason, I was prepared to, and did tolerate a great deal of Ginni’s political activism,” he said. But “Ginni has now crossed a line.” In an e-mail reacting to the texts, Gillers concluded, “Clarence Thomas cannot sit on any matter involving the election, the invasion of the Capitol, or the work of the January 6 Committee.”
As I noted in a recent investigation of Ginni Thomas, Supreme Court Justices aren’t bound by the judicial code of conduct that applies to all other federal judges, which mandates that they recuse themselves from participating in any cases in which personal entanglements could cause a fair-minded member of the public to doubt their impartiality. Yet Justices are subject to a federal law that prohibits them from hearing cases in which their spouses have “an interest that could be substantially affected by the outcome of the proceeding.” The statute, 28 U.S.C. section 455, also requires them to disqualify themselves from any proceedings in which their “impartiality might reasonably be questioned.”
Justice Thomas has already participated in two cases related to the 2020 election and its aftermath, despite his wife’s direct involvement in the so-called Stop the Steal efforts. A third case, John Eastman v. Bennie Thompson, may soon reach the Court. Eastman, a right-wing legal theorist who advised Trump on ways to challenge the 2020 election results, is arguing that attorney-client privilege shields his records from the congressional committee that is investigating the January 6th insurrection, which is chaired by Thompson, a Democratic member of Congress from Mississippi; the committee argues that this privilege can’t be used to conceal potential crimes by Eastman or Trump. The case, currently in a federal district court in California, is likely to reach the Supreme Court on appeal.
Gillers’s e-mail to me laid out several reasons for why Thomas must now recuse himself from all such cases. Most narrowly, he said, these cases could “lead to discovery” of inappropriate conduct by Ginni Thomas; as her texts with Meadows demonstrate, “she actively insinuated herself in the events through her texts to Meadows, and perhaps more extensively.” Gillers continued, “That’s enough to require her husband to abstain from participation in any case in which her actions might be further revealed.” Justice Thomas, he said, clearly “has an understandable interest in protecting” his wife. For that reason alone, Gillers explained, “his impartiality might reasonably be questioned, which the law says requires recusal.” More broadly, Gillers argued, “Ginni became part of the team seeking to overturn the election. That team expressly identified, as a critical part of its strategy, appeals to the Supreme Court, and therefore to Clarence.” He added, “Ginni chose to make herself part of the story that the Trump side, her side, would then ask the Court, including her husband, to interpret in its favor.”
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Gillers emphasized that it’s impossible to know whether Clarence Thomas could actually be impartial in such cases. But, he argued, the Justice has now forfeited the right to “ask the public to trust his impartiality,” adding, “Now that Ginni’s texts are revealed, Clarence could not sit in any such cases.”
The new revelations of Ginni Thomas’s machinations have caused legal experts such as Gillers to retroactively cast a critical eye on those cases related to the 2020 election which Thomas has already heard. Both Justice Thomas and his wife have repeatedly denied that there is any conflict of interest between her activism and his work on the country’s highest judicial body. Earlier this month, Ginni Thomas gave an interview to the Washington Free Beacon, a conservative publication, that was evidently meant to set the record straight. “Clarence doesn’t discuss his work with me, and I don’t involve him in my work,” she said. But she also admitted, for the first time, that, on January 6, 2021, she had attended Trump’s militant Stop the Steal rally, which was held near the White House. She said that she had left the event before it ended—not because she was offended by speakers’ baseless allegations that Trump was the true winner of the election but because she was cold. The rally devolved into a deadly assault on the U.S. Capitol. She has condemned the violence but has defended the protests, and she signed an open letter castigating the congressional investigation of the January 6th events and demanding the banishment of Republicans in Congress, such as Representative Liz Cheney, who support the inquiry. The twenty-nine texts don’t just indicate Ginni Thomas’s efforts to scheme with high-level Administration figures; they expose her belief in baseless conspiracy theories. For example, she texted Meadows that “watermarked ballots in over 12 states have been part of a huge Trump & military white hat sting operation.” At the time, believers in the extremist QAnon conspiracy were arguing that Trump had secretly watermarked ballots in order to detect fraud by Democrats.
This January, Clarence Thomas was the sole dissenter in a proceeding in which Trump asked the Court to stop the House investigative committee from obtaining records of his communications relating to efforts to subvert the 2020 election results. It is unclear whether Trump’s records would have implicated Ginni Thomas. Meadows filed an amicus brief in the case, in support of Trump’s claims of executive privilege, and at the time Meadows’s lawyers were arguing that his coöperation with congressional investigators depended on whether Trump would be ordered to comply himself. Yet, by that point, Meadows had already turned over to the congressional committee some twenty-three hundred texts—and, according to the Washington Post, they included the twenty-nine-message exchange between him and Ginni Thomas. It is not yet known whether there were even more texts revealing Ginni Thomas’s encouragement of overturning the election, and whether Justice Thomas knew at the time about her potential exposure. Gillers told me that, had Justice Thomas been aware of such communications, “he should not have sat.” Gillers also said that Thomas cannot justify having heard the case by claiming that he was unaware of his wife’s interest in the outcome: “It was Thomas’s responsibility to ask Ginni what she was doing to help overturn Biden’s victory. ‘Don’t ask, don’t tell’ is not an acceptable strategy for the Thomases’ marriage. Thomas should have realized that the public would assume that he and Ginni did discuss Trump’s ‘stop-the-steal’ efforts and Ginni’s participation in those efforts. Thomas does not avoid recusal by stuffing his ears, assuming he even did so.” Gillers noted that judges often say that “intentional avoidance of knowledge is knowledge.”
When I spoke with Stephen Vladeck, a professor at the University of Texas School of Law, he also made note of the federal statute requiring Justices to recuse themselves if a spouse has “an interest” in a proceeding’s outcome. It’s unclear whether any of Ginni Thomas’s scheming was described in the papers that Trump attempted to withhold from investigators. But, Vladeck told me, “if any of her stuff was in the Trump docs, she sure had an interest,” and this would make Justice Thomas’s dissent unethical.
In an e-mail, Bruce Green, an expert in judicial ethics at Fordham Law School, told me that he agrees with Vladeck: “If Justice Thomas knew that his wife’s e-mails were among the records that would be produced, then surely he should have recused himself, because his wife, although not formally a party, had a very direct personal interest in the case—an interest in avoiding the embarrassment that would result (and now has resulted) from the revelation.”
Richard Hasen, an expert in election law who teaches at the University of California, Irvine, also believes that Justice Thomas should never have participated in the case weighing whether Congress had the right to review Trump’s papers. Hasen told me, “Given Ginni Thomas’s deep involvement in trying to subvert the outcome of the 2020 election based upon outlandish claims of voter fraud, and her work on this with not only activists but the former President’s chief of staff, Justice Thomas should not have heard any cases” involving disputes over the 2020 election or Congress’s investigation of the January 6th riots. It has now become clear, Hasen said, that “his spouse’s reputation, and even potential liability, is at stake.”
