Before we get into this, let’s pause to observe the total banana-republic insanity of the wife of a Supreme Court justice lobbying the president’s chief of staff to overturn a national election.
And not lobbying him over simple misunderstandings of how elections work either, like the “red mirage/blue mirage” phenomenon with mail-in ballots. Ginni Thomas was coming at Mark Meadows with weapons-grade conspiracy crankery. The fact that an activist as well connected as her was immersed in QAnon-ish election paranoia means “conservatives ought to use this as an opportunity to stop waving away the Big Lie as oh-so-much MSNBC panic-mongering,” writes Matt Lewis today.
Per the Times, some members of the January 6 committee have known about Thomas’s texts for awhile. They were part of the communications Meadows voluntarily turned over to the committee before he stopped cooperating with it. The unique composition of the panel — Democrats plus two highly independent anti-Trump Republicans — has made it the most unified congressional committee in recent American history. But Liz Cheney is still a conservative, the taunts of MAGA fans to the contrary notwithstanding. And there’s no figure more sacrosanct to modern conservatives than Clarence Thomas.
And so a “rift” on the committee has opened, says the NYT. Although maybe only a temporary one:
The panel’s Republican vice chairwoman, Representative Liz Cheney of Wyoming, has led the charge in holding Mr. Trump to account for his efforts to overturn the election, but has wanted to avoid any aggressive effort that, in her view, could unfairly target Justice Thomas, the senior member of the Supreme Court.
So although a debate has broken out inside the committee about summoning Ms. Thomas to testify, the panel at this point has no plans to do so, leaving some Democrats frustrated. That could change, however: On Friday, despite the potential for political backlash, Ms. Cheney indicated she has no objection to the panel asking Ms. Thomas for a voluntary interview…
“I think it would be a dereliction not to bring her in and talk to her,” said Kimberly Wehle, a University of Baltimore law professor who has closely tracked the committee’s work. “It certainly is inconsistent with their neutral, ‘find the facts where they go’ type of approach to this.”
It certainly is, especially since Ginni Thomas wasn’t just lobbying Meadows. She claimed to also have emailed Jared Kushner during the post-election period to recommend that Sidney Powell join Trump’s legal team. And she was in touch with at least one House Republican’s office, warning an aide to Jim Banks that she wouldn’t help Banks’s Republican Study Committee in the future unless she saw its members “out in the streets” agitating to stop the steal.
The committee may have no choice but to haul her in, not wanting to be seen as granting special exemptions to the spouses of conservative icons:
NEWS: At least 2 members of the @January6thCmte are now telling colleagues Friday, in private conversations, that they need to invite Ginni Thomas to come talk, and issue a subpoena if necessary, per three people involved in the discussions. Will push for this in Mon. cmmte mtg.
— Robert Costa (@costareports) March 25, 2022
Clarence Thomas shouldn’t have to answer for his wife’s mistakes, of course. But he should have to answer for his own. Given that she was lobbying the White House on legal matters related to the election, like bringing Powell onto the team, why didn’t he recuse himself from post-election cases heard by the Supreme Court? Experts are wondering, and not just liberal experts:
Professor [Amanda] Frost agreed that the situation was “an easy case.”
“When your spouse is conversing with people who have some control over litigation to challenge an election,” she said, “you shouldn’t be sitting on the Supreme Court deciding that election or any aspect of it.”…
“By writing to Meadows, who was chief of staff and active in the ‘Stop the Steal’ movement, she joined the team resisting the results of the election,” Professor [Stephen] Gillers said. “She made herself part of the team and so she has an interest in the decisions of the court that could affect Trump’s goal of reversing the results.”
Adam White of the conservative think tank AEI told WaPo that in the past complaints that Clarence Thomas should recuse himself from cases due to his wife’s political activism have been overblown. But Ginni Thomas’s texts to Meadows are “somewhat different because they pertain to a specific course of events that did give rise to Supreme Court litigation,” he said. “This does raise real questions about the need for Justice Thomas to recuse from future cases related to the Jan. 6 insurrection.”
And so we come to the heart of the matter. Did Clarence Thomas know what Ginni Thomas was up to during the post-election period?
She sent 29 texts to Meadows that we know of, most during November 2020 but one as late as January 10, 2021, four days after the insurrection. (I say “that we know of” because it’s possible there are other texts that Meadows hasn’t turned over. Remember, he’s no longer cooperating with the committee.) That’s a span of two months during which she was in contact with the highest reaches of the White House while the country was convulsed by Trump’s efforts to cling to power. At no point during this two-month period did Mr. and Mrs. Thomas have a conversation about her involvement behind the scenes in the biggest story in the world?
Not a single “oh, by the way, hon, I texted Mark Meadows about the election today” at the dinner table?
There’s a federal ethics statute that requires a justice to recuse himself from a case when he or his spouse “is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” It’s unclear if that statute is constitutional since it amounts to Congress telling a separate co-equal branch how to police itself ethically. But Gillers told WaPo that Thomas had an obligation — ethically, if not legally — to ask his wife about her activities so as to avoid precisely the sort of appearance of impropriety that he and the Court are now dealing with. He knew she was an activist; he knew she had contacts in the White House; he must have known how she felt about the election. He could have asked her, “You’re not in touch with anyone in Trump’s office, are you?”
Or Ginni Thomas could have just put her phone away instead of lobbying the president’s chief of staff about the election, anticipating how that was destined to cause trouble for her husband if the public found out.
Clarence Thomas’s critics have pointed to the fact that he was the lone dissenter, without explanation, two months ago when the Court ruled that the National Archives should turn over records from the Trump White House to the January 6 committee. Did he dissent because he feared Ginni’s texts to Meadows were part of those records and he wanted to keep them a secret? Maybe not: As noted above, her texts were turned over to the committee by Meadows himself, not by the Archives. But since we’re in the dark as to what Clarence Thomas did and didn’t know about his wife’s activities, we can’t rule out the possibility. If he knew that she was texting with Meadows and Jared Kushner, he might have reasonably assumed that communications from Ginni would turn up in the records held by the Archives, in which case he should have recused himself.
If he didn’t know she was texting with Meadows and Kushner then Ginni Thomas hung him out to dry by not telling him, all but guaranteeing that there’d be an appearance of impropriety to his votes in post-election cases if/when her communications with the White House were revealed.
Either way, I’m guessing Justice Thomas’s colleagues are unhappy with the news cycle of the past few days. Especially the chief, who reportedly worries about the Court being seen as just another hack partisan institution. “The public is going to be deeply concerned whether a justice can be fair when his wife has been such an active participant in questioning the outcome of the election,” said one ethics expert. Presumably Thomas will recuse himself from any future litigation involving the January 6 committee.
I’ll leave you with a quote from the Times about where the committee’s interview with Ginni Thomas is likely headed: “Investigators could ask her the name of the friend she was referring to when she wrote back to thank Mr. Meadows, saying: ‘Needed that! This plus a conversation with my best friend just now…I will try to keep holding on.’ (Ms. Thomas and her husband have publicly referred to each other as their best friends.) Ultimately, they could ask her whether she had discussed Mr. Trump’s fight to overturn the election with her husband.”
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