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6 questions about Clarence Thomas and Supreme Court conflict of interest

Startling disclosures about Justice Clarence Thomas’ wife advising President Donald Trump’s White House to keep up its fight to overturn the election results spurred a public outcry, but that outrage won’t easily translate to changes in lax ethics policies at the Supreme Court.

Even longtime advocates for such reforms acknowledge they face major hurdles at the court and in Congress, which has been considering ethics reforms for more than a decade.

But reform backers are hoping that the revelations that Thomas ruled on a case where his wife’s own text messages might have been at issue will spur pressure on the justices to take action.

“I don’t necessarily think it’s the winning strategy to getting a bill signed on this by Joe Biden, but you can’t just do nothing,” said Gabe Roth of Fix the Court, which advocates for ethics reforms and greater transparency at the court. “This is unprecedented in terms of having evidence of a specific case and that a spouse may have been talking to the justice about it.”

Here’s a look at why people are calling for the conservative justice’s recusal in future Jan. 6 cases and why efforts to force that face an uphill battle:

What are the ethics concerns with the Thomases?

From the fall of 2020 through as recently as last month, Thomas voted on a series of presidential election-related disputes. Text messages first reported last week by The Washington Post and CBS News show that the justice’s wife, Virginia Thomas, who is known as Ginni, exchanged 29 text messages with White House chief of staff Mark Meadows as Trump fought to overturn the 2020 election results. Ginni Thomas sent Meadows at least one YouTube video about a conspiracy theory indicating that authentic ballots contained a digital blockchain watermark.

Her texts appear to have been covered by a request the House Jan. 6 Committee sent to the National Archives for records related to the election fight and the storming of the Capitol. Trump sought to invoke executive privilege to block that demand. The case wound its way to the Supreme Court, which turned down Trump’s bid in January. Only one member of the court publicly dissented from the court’s refusal to grant Trump emergency relief: Justice Clarence Thomas.

While questions are swirling about whether the justice should have recused because Ginni Thomas’ texts were or should have been in the messages that were the subject of the Supreme Court litigation, it turns out the House panel obtained at least some of the relevant texts from Meadows directly.

Is there a broader problem with ethics at the Supreme Court?

The high court has historically had looser ethics rules than those for other judges and lacks an enforcement mechanism other than the justices policing themselves.

The justices are covered by a federal law regarding recusal that says a jurist should recuse “in any proceeding in which his impartiality might reasonably be questioned,” as well as when a spouse has a financial interest “or any other interest that could be substantially affected by the outcome” of a case.

Some ethics experts say Ginni Thomas’ direct role in giving the White House advice about whether and how to push its election claims in court crosses that line.

“What we have here is engaging or attempting to engage with the litigation strategy of the then-president,” said Kathleen Clark, a law professor at Washington University in St. Louis. “It’s as though she were a lawyer in the proceeding. … I think it’s clear under this statute that he should have disqualified himself and would have to disqualify himself under future cases related to Jan. 6.”

There is also a broader ethics code that applies to district court and appeals court judges, but some justices have said that does not apply at the Supreme Court. Litigants are free to ask justices to recuse, but that could anger them if they refuse, and there’s no outside panel or higher court to appeal to for demanding a justice adhere to the law or the code.

“If a justice flouts them, there is no recourse or reprimand, save the high bar of impeachment,” said Roth, of Fix the Court. “If laws are never enforced, how strong are they? … It just seems like each justice looks at their ethical obligations a little bit differently.”

What can Congress do about this, short of impeachment?

Democratic lawmakers are expressing outrage about Thomas’ failure to recuse.

“The entire integrity of the court is on the line here,” Sen. Amy Klobuchar (D-Minn.) said on ABC’s “This Week” on Sunday. “All I hear is silence from the Supreme Court right now.”

Although Sen. Sheldon Whitehouse (D-R.I.) is a cosponsor of legislation to impose more ethics requirements on the Supreme Court, he said Monday that he’d prefer to see the justices act on their own.

“Well, I think in the first instance it’s up to the court to make a determination as to when it’s going to subject itself to a code of ethics, when it’s going to have some degree of oversight rather than have every judge decide for themselves and when they’re going to take recusals more seriously,” Whitehouse told POLITICO.

Senate Judiciary Chair Dick Durbin (D-Ill.) said Monday he thought Thomas should “certainly” recuse from future Jan. 6 cases, but he also made clear that for the moment confirming Judge Ketanji Brown Jackson to the high court was his panel’s highest priority.

“The committee is focused on one thing: the Supreme Court vacancy. And after that there are lots of things which we will discuss, but I am troubled, to say the least, about the disclosures,” Durbin said.

For their part, Republicans are portraying the flap as much ado about nothing. Sen. Josh Hawley (R-Mo.) suggested it was sexist to view Thomas as subject to pressure from his wife.

“She’s an independent, adult woman,” Hawley told CNN. “It just seems a little strange to me all of these calls for her husband to be what, like, minding her better? Frankly, I think it’s kind of misogynistic. This idea that he is somehow automatically responsible for everything she says — what does that mean? Does she have to get his permission?”

Any legislation to impose stricter ethics rules on the Supreme Court would need substantial bipartisan support to clear the 60-vote filibuster threshold in the Senate. The focus on Thomas — who is highly popular with conservative legal advocates — could actually make passage of ethics fixes less likely since Republicans who vote for such changes could be seen as crossing one of their own.

What are the other Jan. 6-related cases that could raise ethics cases for Thomas?

The storming of the Capitol on Jan. 6, 2021, and the related attempts to derail the congressional session to certify the election have spawned a wide range of litigation — at least some of which seems almost certain to come before the justices.

Perhaps the most likely vehicle in the coming months is a series of civil suits that police officers and Democratic members of Congress have filed against Trump and others for allegedly triggering the riot. Some of these cases are already at the D.C. Circuit Court of Appeals, as Trump presses his claim that he should be entirely immune from this sort of litigation.

There are also about 800 criminal cases stemming from the Capitol riot, ranging from misdemeanor charges to seditious conspiracy. Some defendants have taken plea deals and waived most of their appeal rights, but others are free to appeal their convictions and sentences. These cases could also spur litigation over Trump records or testimony from Trump himself.

Beyond those cases, there is the pending prosecution of former Trump adviser Steve Bannon on contempt-of-Congress charges for defying a subpoena from the House Jan. 6 committee. He is set for trial in July. The House voted in December to refer Meadows to the Justice Department for similar charges. Referrals for Meadows’ former deputy, Dan Scavino, and Trump trade adviser Peter Navarro are looming.

The House committee is also facing about two dozen lawsuits filed by people whose cellphone records, documents, emails or banking records the panel sought to obtain. Most of those seem to be on a slow track at the moment, but a judge ruled Monday in one case involving Trump lawyer John Eastman that 101 emails must be disclosed to the House panel. It’s unclear whether that dispute will head up the legal chain because Eastman said Monday he intends to comply with the court’s order.

Will President Biden back the drive to get Thomas to recuse himself?

The drive for reforms to SCOTUS ethics rules doesn’t look like it will get much support from the White House.

Asked Monday about whether Thomas should step aside in Jan. 6-related cases, Biden punted.

“I leave that to two entities. … One, the January 6th committee and two, the Justice Department. That’s their judgment, not mine, to make,” Biden told reporters. “I would not tell the Justice Department what position to take or not take, and I’m not going to instruct the Congress, either.”

What are the chances Chief Justice John Roberts will act on Thomas’ situation?

Court watchers are doubtful Roberts will act regarding Thomas individually, but there’s some reason to believe he might take some broader steps to address the issue of conflicts of interest.

Roberts devoted more than a page in his annual year-end report in December to a Wall Street Journal investigation that found 131 judges took part in 685 cases over almost a decade that involved companies in which the justices, their spouses or minor children had reported financial interests.

“Public trust is essential, not incidental, to our function,” Roberts wrote. “Individually, judges must be scrupulously attentive to both the letter and spirit of our rules, as most are.” He also called for “more rigorous” training and instilling “a culture of compliance.”

The courts have also been known to move to address problems, like sexual harassment, when they are aware of looming congressional action.

“We all think of Roberts as caring a lot about the reputation of the institution,” said Clark, the Washington University law professor, “and so that probably is where the pressure can be put — both public pressure and legislative pressure.”

Marianne LeVine and Burgess Everett contributed to this report.

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