There’s 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 that Sen. Lindsey Graham (R-S.C.) comply with a subpoena to testify before a grand jury in Fulton County, Ga. The district attorney there is conducting a criminal investigation into the parties involved in trying 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 statute that applies to Thomas. It provides: “Any justice, judge, or magistrate judge 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 that could be substantially affected by the outcome of the proceeding.”
The statute says “shall” — meaning, this is not discretionary. Congress has imposed on federal judges a mandatory duty to disqualify themselves if their impartiality might be reasonably questioned. It does not matter whether Thomas issued Graham’s desired stay or denied it; he wasn’t supposed to rule at all.
Unfortunately, the statute includes no method to enforce it. Obedience to the law thus depends upon the honor of the justice or judge. Any justice in Thomas’ position who was concerned 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 doesn’t have a legal leg to stand on. The Constitution’s speech and debate clause, on which Graham relies, is meant to protect federal legislators’ words and actions that relate to their legislative duties. Graham was clearly not on a lawmaking mission on Nov. 13, 2020, when he phoned Georgia Secretary of State Brad Raffensperger and asked questions that Raffensperger understood to be about “how many votes [he] could throw out” 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 the subpoena? What is he afraid of?
Thomas’ stay is temporary; the final decision will be made by the full court. There are plenty of reasons why even the court’s conservative majority will follow the settled rule that gives grand juries wide latitude to investigate in criminal cases and to enforce such subpoenas.
Even with a temporary stay, Thomas cannot legally thumb his nose at the federal prohibition on participating in judicial decisions where a reasonable person could question the jurist’s impartiality. Certainly, that is in question because his wife has been a leading MAGA operative actively promoting the “Big Lie” that the 2020 election was fraudulent.
Virginia “Ginni” Thomas attended the Jan. 6, 2021, rally where then-President Trump ignited the storming of the U.S. Capitol. And weeks before that, she texted Trump’s White House Chief of Staff Mark Meadows at least 29 times, pressing him to overthrow the voters’ verdict on Trump. “Help This Great President stand firm, Mark!!! … Biden and the Left [are] attempting the greatest Heist of our History.”
When Meadows responded that he had “staked [his] career on it,” Thomas replied gratefully: “This plus a conversation with my best friend just now … I will try to keep holding on.” (She didn’t say who her “best friend” was.)
In another email to Meadows, she referred to the “Biden crime family” and to “ballot fraud co-conspirators … being arrested & detained for ballot fraud right now … to face military tribunals for sedition.”
In November and December 2020, Ginni Thomas also emailed Republican state legislators in Wisconsin and Arizona, falsely telling them that the power to choose electors was “theirs and theirs alone.” Her messages fit neatly into the untenable “independent state legislature” theory now before the Supreme Court and promoted in December 2020 and January 2021 by Trump lawyer John Eastman. Eastman was a former Supreme Court clerk for Justice Thomas.
Notably, media reports of Ginni Thomas’ Sept. 29 testimony before the Jan. 6 House select committee include no denials that she forwarded to her husband communications from Eastman. Her opening statement to the committee read, “I did not speak with [my husband] at all about the details of my postelection activities.” The Washington Post and the New York Times quoted an evasive quip from her statement: “It is laughable for anyone who knows my husband to think I could influence his jurisprudence — the man is independent and stubborn.”
Clarence Thomas certainly was stubborn when he refused to recuse himself from Graham’s case as federal law requires him to do.
Laurence H. Tribe is the Carl M. Loeb university professor emeritus and a professor emeritus of constitutional law at Harvard Law School. Dennis Aftergut is a former federal prosecutor and currently counsel to Lawyers Defending American Democracy.