Oct 24 (Reuters) - Justice Clarence Thomas recently recused himself in a case related to the Jan. 6, 2021, Capitol attack, but given his prior apparent indifference toward major questions of judicial ethics, the move strikes me as too little, too late.
Thomas stepped aside from the court’s decision not to hear John Eastman's appeal of a ruling that allowed Congress to obtain his emails during an investigation into attempts in 2021 to subvert the presidential election, according to Supreme Court orders issued on Oct. 2. Eastman, who was previously a personal lawyer for Donald Trump, has been criminally indicted in a separate case for his role in a scheme to keep the former president in power.
Thomas' decision marks the first time the justice sat out of a case related to the Jan. 6 attack and other attempts to overturn the 2020 election. In a sense, the justice's recusal came in the case that mattered the least.
By the time Eastman’s petition for certiorari reached the Supreme Court, the case was essentially moot: Eastman was seeking an order that would have shielded his emails from discovery, but Congress already obtained the relevant emails last year. Moreover, Eastman relied on a long-shot argument that his case should be revived because Congress was responsible for publicly disclosing the emails, even though his petition also admits that he was partly responsible because of his "failure to deactivate the link" to the files.
So Thomas could recuse himself knowing that not participating would have zero practical effect. In other words, Eastman’s petition may have presented the justice with an opportunity to do some public-relations damage control for himself in a situation with little legal consequence.
Of course, we can't get inside Thomas' head to know what motivated him to step away from this case.
Thomas didn’t explain his recusal decision, standard practice at the Supreme Court, which isn’t subject to the codes of conduct that bind other federal judges. The justices are subject to a federal recusal statute, but there is no mechanism to review their decisions, whereas other judges' non-recusals can be appealed to higher courts. The Supreme Court press office didn't respond to my requests for comment.
But we do know that Thomas chose to recuse amid reports of his relationships with high-powered conservative donors and business leaders, and public pressure.
The justices' publicly known ties with Eastman did in fact raise clear conflicts issues: The Washington Post reported last year that investigators had obtained emails between Eastman and Justice Thomas' wife, conservative activist Virginia "Ginni" Thomas. And Eastman is a former Thomas judicial clerk who had signed a letter with about 100 other former clerks to support the justice following the reports that he received lavish benefits from conservative mega-donors.
Anthony Caso, Eastman's attorney, said that "we cannot speculate on the justice's reasoning" for recusing, adding that his client has a "friendly relationship with the Thomases," like all of his former clerks.
An attorney for Virginia Thomas didn't respond to my requests for comment.
Yet, although Thomas recused on Oct. 2, he declined to do so in prior Supreme Court cases related to the Jan. 6 investigation, all of which involved ongoing disputes in which he could potentially make a difference. Those cases also raised potentially more glaring conflicts of interest than the Eastman situation.
For example, Thomas declined to recuse himself and dissented when the Supreme Court denied Arizona Republicans’ petition to stop the so-called "January 6 committee" from obtaining their phone records in the probe of the Capitol attacks.
The justice participated despite the fact that his wife had contacted Arizona lawmakers to urge them to help overturn the election results, according to reports by the Washington Post in June 2022. Ginni Thomas was even questioned by the January 6 committee. (The recusal statute requires disqualification if a spouse has an interest in the proceeding or may be “a material witness in the proceeding.”).
Thomas was also the only justice to publicly dissent in January when the court denied Trump’s request to block Congress from obtaining certain records that were also relevant to the January 6 investigation.
Generally speaking, Thomas seems to identify conflicts less often than any of the other justices. The justices recused themselves in roughly 750 or about 3% of appeals between 2018 and 2023 -- virtually all of which were unexplained, according to an analysis in February by Bloomberg Law. Thomas recused in 0% of cases between 2018-2021, and sat out of 3% of cases in 2022, Bloomberg Law reported. Justices Elena Kagan and Neil Gorsuch, for example, recused themselves from 16% and 11% of cases last year, respectively.
James Alfini, dean emeritus at South Texas College of Law, said Thomas' decision to bow out of the Eastman case was appropriate, but it does not settle concerns from lawmakers about his overall approach to ethics questions.
“There would certainly appear to be an inconsistency in light of his failure to recuse in the earlier” cases that presented similar or arguably worse conflicts, Alfini said.
It suggests that Thomas is picking and choosing which cases to recuse himself from based on something other than a consistent and principled assessment of his potential conflicts.
Stephen Gillers, professor emeritus at New York University School of Law, echoed Alfini's sentiment.
"I certainly do not attribute Thomas’s decision to a change in his narrow interpretation of the recusal statute,” said Gillers.“I do not believe he ‘got religion.’”
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Reporting by Hassan Kanu
Our Standards: The Thomson Reuters Trust Principles.
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