The Supreme Court is now in the middle of the Jan. 6 insurrection. Congress needs to respond

The Jan. 6 committee is reportedly preparing to call Supreme Court spouse Ginni Thomas to talk about just how deeply involved she was in the effort to help Donald Trump have a coup. Thomas told the Daily Caller, “I look forward to talking to them,” and that she wants to “clear up misconceptions.” Okay then.

The committee now says she’s going to get that opportunity. That’s one step closer to Congress taking seriously the threat that Thomas and her spouse, U.S. Supreme Court Justice Clarence Thomas, pose to the republic.

report in The New York Times Thursday combined with The Washington Post story put Ginni Thomas in the thick of John Eastman’s coup-plotting. There are emails between the two. There’s Eastman telling a pro-Trump lawyer and Trump campaign officials that he was aware of a “heated fight” within the Supreme Court: “For those willing to do their duty, we should help them by giving them a Wisconsin cert petition to add into the mix.”

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Now, that could be Eastman lying about the situation in order to keep the team fighting for Trump or from some other reason—that’s law professor Steve Vladek’s interpretation. Or it could have been Ginni working Eastman up with tales from the inside to keep him happy.

Regardless, it is the spouse of a sitting Supreme Court justice in the thick of a coup attempt. We don’t know where Clarence Thomas is in all this. We do know that he was the lone justice who wanted to keep the White House records around Jan. 6 away from the committee. Maybe now we have new information as to why he wanted that.

What we also know now, thanks to Thursday’s Jan. 6 committee hearing, is that Eastman (who was a Thomas clerk back in the day) knew that what he was promoting was illegal and told Trump so on Jan. 4, two days before the insurrection.

Eastman knew what he was pushing—with help from Ginni Thomas—was illegal. Following that to its logical conclusion, with the revelations of the last 24 hours, how does the committee not subpoena Ginni Thomas?

Furthermore, how do President Joe Biden, House Speaker Nancy Pelosi, and Senate Majority Leader Chuck Schumer not demand that Clarence Thomas resign? How do the House and Senate Judiciary Committees not turn their attention to Clarence Thomas and investigating just what Clarence and Ginni Thomas were cooking up together?

Here’s what retired federal judge J. Michael Luttig, a true conservative hero who was on George W. Bush’s short list for the Supreme Court, said: ”Donald Trump and his allies and supporters are a clear and present danger to American democracy. [...] I don’t speak those words lightly.”

Those allies and supporters include Supreme Court Clarence Thomas. The danger is coming from the highest court in the land and Congress has to deal with that. It’s time to begin the investigations leading to an impeachment of Clarence Thomas. No, this Senate would not convict with 50 Republicans, but after the work of the Jan. 6 committee and all of these revelations, they need to be forced to vote to protect him. They need to be making the case against Clarence Thomas, and then they need to start real work of reforming and expanding the Supreme Court.

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2020 was an election theft dry run for Republicans. Next time, they could succeed

Every election starting now and into the foreseeable future is going to be the most important election of our lifetime. Until the Republican Party as we currently know it is ground to dust, scorched, and the earth on which it stands is salted, the threat of white nationalistic fascism will remain. Right now, in 2022, Republicans are running explicitly on undermining representative democracy, from the smallest local positions up through the state legislatures and all the way to Congress. They are converging behind the Big Lie and promising that they are going to fix it so that they don’t lose any more elections. So that Donald Trump (or his stand-in) will take the 2024 election.

They’re not even trying to be subtle about it—it’s explicit in so many campaigns for governor, attorney general, and secretary of state in plenty of battlegrounds, including the states that Trump tried to contest in 2020.

“What we’re seeing right now is unprecedented,” Joanna Lydgate, co-founder and CEO of States United Action, told CNN’s Rod Brownstein. “To see candidates running on a platform of lies and conspiracy theories about our elections as a campaign position, to see a former President getting involved in endorsing in down-ballot races at the primary level, and certainly to see this kind of systemic attacks on our elections, this spreading of disinformation about our elections—we’ve never seen anything like this before as a country.”

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Brownstein reports on a study released last week—commissioned by the groups States United Democracy Center, Protect Democracy, and Law Forward—which determined that 13 states have already approved laws to make sure there will be partisan control over election administration, laws to intimidate election administrators, and laws requiring audits of the 2020 election, as if that is a thing. That’s beyond the orgy they’ve been having for the past decade with voter suppression laws, which hasn’t ended either. Thirty-three states have another 229 bills related to denying the results of the last election, and to limiting the electorate and predetermining the outcome of future elections.

“Taken separately, each of these bills would chip away at the system of free and fair elections that Americans have sustained, and worked to improve, for generations,” the groups concluded. “Taken together, they could lead to an election in which the voters’ choices are disregarded and the election sabotaged.”

“In the leadup to the 2020 election, those who warned of a potential crisis were dismissed as alarmists by far too many Americans who should have seen the writing on the wall,” Jessica Marsden, counsel at Protect Democracy, told Brownstein in an email. “Almost two years later, after an attempted coup and a violent insurrection on our Capitol, election conspiracy theorists—including those who actually participated in January 6—are being nominated by the GOP to hold the most consequential offices for overseeing the 2024 election.”

“It’s all connected,” Lydgate said. “The playbook is to try to change the rules and change the referees, so you can change the results.”

They’ve got a very powerful referee on their side in the form of Supreme Court Justice Clarence Thomas.

A casual observer might reasonably conclude that Ginni and Clarence Thomas are working in tandem to lay the groundwork for the next coup—with Ginni taking up the politics and Clarence handling the legal side. The symmetry between their work is remarkable. https://t.co/wUh5TiHk4q pic.twitter.com/tooRedMQJk

— Mark Joseph Stern (@mjs_DC) May 23, 2022

Thomas won’t recuse himself from any of these cases, and as of now, a Democratic Congress doesn’t seem particularly interested in trying to force him to via the threat of investigation and impeachment.

“What’s past is prologue, and what was done sloppily in 2020 is being mapped out by experts for 2024,” Slate’s Stern and Dahlia Lithwick write. “It didn’t work in 2020 because the legal and political structures to support it weren’t in place at the time. Those pieces are being put into place as we type this.” That’s the story Brownstein is also trying to get to Democrats and the rest of the traditional media—anyone who will listen and can do something about it.

There are answers. There are ways to fix this. They start with electing enough Democrats to state offices to make sure the damage the fascists can do is limited. We can also elect enough Democrats to the House and to the Senate to make the two Republican-friendly, obstructionist Democratic senators irrelevant.

Then it’ll be a matter of convincing that Democratic majority and a Democratic president that none of this is blogger hysteria, but a very real threat to our freedoms that has everybody else’s hair on fire. Saving our representative democracy means expanding and reforming the court.

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Clarence and Ginni Thomas take center stage at House hearing on Supreme Court ethics

The federal judiciary is on tap for the House Wednesday—specifically, the topic of reforming the federal judiciary. The House has a raft of suspension bills (legislation that doesn’t require the regular rules process on the floor) it will run through, including the bipartisan Courthouse Ethics and Transparency Act, which the Senate already passed in February. While that’s happening, the Judiciary Committee’s Subcommittee on Courts will hold a hearing on Supreme Court ethics, or lack thereof.

That’s the juicy part of the day, with lawmakers spurred on by the disclosure of Ginni Thomas’ text messages showing the depth of her involvement in trying to promote a coup. As the spouse of a wildly partisan political activist, Supreme Court Justice Clarence Thomas at the very least should have recused from any cases related to the 2020 election and Donald Trump. Which of course he did not. This hearing will examine the lack of Supreme Court ethics and Congress’ role in dealing with that, including impeachment.

A memo obtained by The Hill from subcommittee chair Rep. Hank Johnson (D-GA) and sent to members ahead of the hearing outlines the existing codes of conduct that apply to other federal judges and summarizes legislative proposals that would extend the code to Supreme Court justices. As of right now, they’re exempt from it and are expected to discipline themselves—which, in Thomas’ case, doesn’t happen. The memo also outlines Congress’ impeachment authority as one of the tools at their disposal.

“Threats or inquiries of impeachment as a means of regulating the conduct of Supreme Court justices have had varying effects,” the memo said. Just one justice in the nation’s history has been impeached by the House, Samuel Chase in 1804. He was not convicted by the Senate. In 1969, Justice Abe Fortas resigned over an impeachment threat. The current crop of Republican justices pretty much thumb their nose at the idea of ethics, in contrast to the newest justice-designate, Ketanji Brown Jackson, who has preemptively recused herself from an affirmative action case before she’s even been officially seated on the court.

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The memo makes it clear that this hearing is about the Thomases and the increasing calls for action  “following the reporting about text messages between the spouse of an associate justice and the then-White House Chief of Staff.”

“The Supreme Court has long operated as though it were above the law. But, Justice Clarence Thomas’ refusal to recuse himself from cases surrounding January 6th, despite his wife’s involvement, raises serious ethical—and legal—alarm bells,” vice chair of the subcommittee Rep. Mondaire Jones (D-NY), said ahead of the hearing. “The need for strong, enforceable ethics laws is clearer than ever. We have to do more to hold the Court accountable and restore public trust through a binding code of ethics and recusal.”

“Recent reports that the text messages of a justice’s spouse urging the overturning of a free and fair election may have been at issue in a case in front the Supreme Court—but that the justice did not recuse himself from the case—is just the latest and particularly egregious example in an unfortunately long list of illustrations as to why Supreme Court justices need to follow a formal code of ethics,” Johnson told The Hill. “I have been calling for this sort of reform for years, and I am encouraged to see a large, bipartisan majority of the public in favor of this long overdue legislation.”

Republicans, and particularly Senate Republicans, are unlikely to agree because it’s their justices behaving badly. It is, however, important for Democrats to keep pushing that point and to keep up the drumbeat for reform. The threat of some kind of action from Congress—a SCOTUS code of ethics, court expansion, impeachment—is at this point the only leverage that exists against the rogue Supreme Court majority.

The legislation they will pass Wednesday (a slightly different version passed 422-4 in December) will help some toward that effort. It also demonstrates that even the most hardcore partisan Republicans—in this case the bill’s sponsor, Sen. John Cornyn—recognize that there has to be at least the gloss of accountability for the Supreme Court. The bill toughens financial disclosure requirements for federal judges, including Supreme Court justices. They will have to make financial holdings and stock trades publicly available online, in the interest of disclosing conflicts of interest that would warrant judges recusing themselves from related cases.

As it currently stands, the parties involved in a case can request to see the judge’s financial disclosures, as can members of the public, but the judges themselves get to decide how much information they release and when. They have sole discretion in redacting information and can take all the time they want to fulfill requests.

The legislation is a result of a report last fall in the Wall Street Journal that found more than 130 judges broke the law by hearing cases in which they had a financial interest instead of recusing themselves. The Journal found 685 lawsuits that were decided by judges with a financial stake, with the potential fallout of hundreds of cases being overruled.

When the Journal alerted the judges to these violations, “56 of the judges […] directed court clerks to notify parties in 329 lawsuits that they should have recused themselves. That means new judges might be assigned, potentially upending rulings.” Most of the judges gave lame excuses or played dumb. “I had no idea that I had an interest in any of these companies in what was a most modest retirement account,” said Judge Timothy Batten Sr. of the U.S. District Court for the Northern District of Georgia, who owned JPMorgan Chase stock and ruled favorably for the bank in several cases.

Under this legislation, everyone in the judiciary branch will have to follow disclosure requirements like those that apply to lawmakers, reporting within 45 days all stock trades of more than $1,000. The Administrative Office of the U.S. Courts will have to create an online database, searchable and publicly accessible, of judicial financial disclosure forms and will have to get those forms into the database within 90 days from when they’re filed. The new law will apply to Supreme Court justices as well as federal appellate, district court, bankruptcy, and magistrate judges. The database has to be online within six months of President Joe Biden signing the bill.

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The Supreme Court can’t be untouchable. Congress needs to investigate Thomas

The Washington Post’s Paul Waldman is absolutely right: “The controversy over Virginia ‘Ginni’ Thomas, Clarence Thomas, and the Jan. 6 insurrection is demonstrating one profound difference between Democrats and Republicans: how they view the value of making a stink.”

Three years on, the ridiculous and entirely made-up Hunter Biden story is still a thing, more a thing than Donald Trump extorting Ukrainian President Volodymyr Zelenskyy to try to get “dirt” on Biden. Because Republicans keep feeding it—because they know it will work.

Meanwhile, the spouse of a sitting U.S. Supreme Court justice was involved up to her eyebrows in the effort to overthrow the Congress and keep Donald Trump in office. The Donald Trump who was doing Vladimir Putin’s bidding in trying to withhold arms from Ukraine. Arms that Ukraine has desperately needed in its defense against Russia. That’s a pretty big thing! All definitely worth making a stink about. But thus far, Democratic leadership in Congress is not. The most they’ve done so far is say they think Thomas should recuse himself from any Jan. 6-related cases. Ineffectively.

That’s why Daily Kos and 16 other organizations have signed on to this Take Back the Court letter, demanding that Congress open a formal investigation into Clarence Thomas’ misconduct. We’ve written to Sen. Dick Durbin (D-IL) and Rep. Jerry Nadler (D-NY), the chairs of the Senate and House Judiciary Committees, “to request that the House and Senate Judiciary Committees open a formal investigation into Associate Supreme Court Justice Clarence Thomas’ misconduct in his handling of cases regarding the January 6 insurrection, the 2020 presidential election, and other cases involving his wife’s political activities.”

“Justice Thomas’ unethical conduct from the bench is within the purview of the House and Senate Judiciary Committees, and we urge the committees to investigate that conduct fully, in cooperation with the January 6 Select Committee as needed,” the groups write.

Even though Supreme Court justices have chosen not to abide by the same code of ethics that other all federal judges must adhere to, they are bound by a federal statute that bars them from hearing cases in which their “impartiality might reasonably be questioned,” or in which their spouse has “an interest that could be substantially affected by the outcome of the proceeding.”

Thomas has already violated that statute. He’s ruled in multiple cases surrounding the 2020 election and the insurrection—including being the lone dissenting vote requiring Trump to provide records to the Jan. 6 committee, records that may very well include communications from Ginni Thomas. “Justice Thomas clearly violated this provision when he refused to recuse himself from a case directly implicating his wife’s activities in support of the January 6 insurrection, and it is incumbent on Congress to respond,” the groups write.

Thomas’ rulings on cases in which his wife was directly involved go back at least two decades. In December 2000, the court heard Bush v. Gore, the only time in history in which the Supreme Court selected a president. While the case was pending, Ginni Thomas was collecting résumés for potential Bush administration positions. Twelve years later, he heard the challenge against the Affordable Care Act, NFIB v. Sibelius. Ginni was then heading up a group called Liberty Central, which was agitating for the law to be declared unconstitutional. Back then, a group of 74 members of Congress asked Thomas to recuse from the case. He did not. He heard the case and voted in dissent when the court upheld the law.

So we know how polite requests for recusal are going to pan out. Thomas is not going to recuse out of any sense of propriety or ethics. That’s abundantly clear. There’s only one way it happens and that would require a formal investigation.

It’s not just his refusal to recuse from cases, either, that raises ethics concerns aboutThomas. “Justice Thomas has repeatedly failed to disclose employers who paid his wife hundreds of thousands of dollars, as required by the Ethics in Government Act of 1978,” Take Back the Court points out. “This raises serious questions about what, if anything, Justice Thomas is trying to hide, whether any other undisclosed payments exist, and what possible judicial outcomes such hidden details relate to.”

“Allowing Justice Thomas to avoid scrutiny will surely cause the American people’s faith in our judicial system to deteriorate further—perhaps beyond repair. Americans know that Justice Thomas cannot act impartially in cases related to his wife’s political activities,” the groups write. “It’s up to your committees to ensure that he is held accountable for abusing his power and pretending otherwise.”

Nothing is going to happen to Thomas without Democrats kicking up a stink. An investigation into Thomas will sure stink for the Supreme Court, and for Chief Justice John Roberts, who seems to care about his legacy as much as anything else. Yes, it needs to happen.

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As momentum builds in Congress to do something about Thomas, impeachment needs to be an option

Supreme Court Justice Clarence Thomas is a problem for the court, for the nation, and for democracy in general. That’s been true for decades, as long as his deep ties to the dark money swirling around the judiciary, and doesn’t even take into account the extremely partisan activities of his “best friend” and wife Ginni. Since those activities now include attempting to overthrow the government, the problem of Clarence Thomas just got a whole lot more glaring—and congressional leadership has been caught just a bit flat-footed.

Stepping into the void, Rep. Alexandria Ocasio-Cortez was the first to use the “I” word. “Clarence Thomas should resign,” she tweeted. “If not, his failure to disclose income from right-wing organizations, recuse himself from matters involving his wife, and his vote to block the Jan 6th commission from key information must be investigated and could serve as grounds for impeachment.”

By all means, the House should start talking about impeachment. That’s what Thomas deserves: the ultimate censure. That’s where to start: the maximum. There’s no real other leverage the other two branches have over the Supreme Court than pressure in the public eye and the threat of action. Chief Justice John Roberts has been aware enough about his personal legacy in his career thus far to make blowing up the Thomas scandal in public—and keeping it there with discussion of impeachment—a smart tactic.

Would the 50-50 Senate convict him? No, but that’s a valuable weapon for Democrats in the upcoming election. Republicans are protecting the Supreme Court justice who has refused to recuse himself from cases involving his wife’s efforts to overthrow the government.

The good news is that Democrats are inching toward something a little more concrete than demanding that Thomas recuse. That’s where they started. A group of House and Senate Democrats, spearheaded by Sen. Elizabeth Warren (D-MA) and Rep. Pramila Jayapal (D-WA), wrote to the Supreme Court requesting that Thomas recuse himself from any future Jan. 6-related cases, as well as provide a “written explanation for his failure to recuse himself” in previous cases.

“[G]iven the recent disclosures about Ms. Thomas’s efforts to overturn the election and her specific communications with White House officials about doing so, Justice Thomas’s participation in cases involving the 2020 election and the January 6th attack is exceedingly difficult to reconcile with federal ethics requirements,” says the letter obtained by The Washington Post.

The lawmakers also called on Roberts to commit to creating “a binding Code of Conduct for the Supreme Court—the only court in the country not currently subject to a judicial code of ethics—that includes (1) enforceable provisions to ensure that the Justices comply with this Code and (2) a requirement that all Justices issue written recusal decision.” They ask that he do so by April 28.

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Which is a fine and appropriate next step, since Thomas will surely refuse to recuse. “He absolutely should recuse himself,” Jayapal told Politico. But, she added, “Clearly the Supreme Court is in need of ethics reforms.”

Jayapal is on the House Judiciary committee, so the ethics reform thing is another possibility. In fact, legislation to impose the Judicial Code of Ethics on the Supreme Court—which is currently exempt from it—would be a good concurrent step for Congress to be taking along with the public pressure campaign to get him to resign. That legislation exists in a bill written by Sen. Chris Murphy (D-CT) and should start moving through committee immediately.

After an ill-conceived dismissal of the issue on Monday by Judiciary Chair Dick Durbin, who suggested there’s no urgency to the Thomas problem, there’s now some momentum there. Durbin had a day to think it over and is now joining Warren in saying lawmakers need to act. Durbin told CNN’s Manu Raju that imposing the ethics code on the Supreme Court is “long overdue.” Warren told him the legislation should include limits on stocks and “rules about other kinds of personal conflicts.” The Senate Democrats are expected to discuss Murphy’s legislation in their conference luncheon Tuesday, Raju reports.

That’s all fine and needs to move apace. At the same time, House Democrats should not rule out pursuing impeachment, which has to initiate in that chamber. Once again, Ocasio-Cortez is pushing Democrats to go there. Remember, she said, that pushing for impeachment of Trump on his extortion of Ukrainian President Volodymyr Zelenskyy was initially deemed “unrealistic,” and the “debate was fierce & opposition real.” But, she argues, “When we look back at the decision to impeach Trump over Ukraine today, could you imagine if the naysayers and those claiming to be ‘politically savvier’ won? WE would be explaining why we allowed it to happen instead of the Senate explaining why they acquitted.” That’s on the Senate Republicans.

“Subpoenas, investigations, and impeachment should absolutely be on the table. We shouldn’t have to think twice about that,” she concluded in the thread. “We must go where the facts take us. A failure to act puts the imperiling of democracy squarely on *our* shoulders. It’s our duty to defend it.”

Let the Senate lead on the code of ethics legislation. How are Senate Republicans going to argue about that? The House needs to start those investigations toward impeachment. Both chambers should also be talking now about legislation to expand the court, and to put pressure on President Joe Biden to join as well. If there’s going to be any change, any accountability at the court, it’s not going to come without a big public stink. It’s the only way it’s going to happen.

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