Omitting the Thomases
Terry H. Schwadron
Dec. 27, 2022
Clearly, in making the choice to focus its final report on placing Donald Trump at the center of the variously intersecting plots and schemes leading to Capitol violence on Jan. 6, 2021, the House committee investigating how it all came about downplayed or simply set aside other aspects.
In the days since Friday, when the final report became available, there have been almost as many efforts from opponents and critics to pick away as still-not-explained aspects to the insurrection attempt, from the handling of intelligence to the specific shortcomings of Capitol Police preparation for the mob that rose up.
Some of the criticism is self-serving including Trump’s own social media postings for example and attempts by Republicans who were involved in portions of participation. Rep. Marjorie Taylor Greene (R-Ga.) is among those who say Democratic House Speaker Nancy Pelosi was “complicit” in violence by failing to anticipate that armed Trump supporters would attack the Capitol, despite being an apparent target of the mob and lacking authority to dispatch National Guardsmen.
Simply put, even if the Justice Department were to follow all the criminal referrals that the committee voted, even if the Congress were to fully adopt legislative recommendations from the committee, there would remain a body of questions that are going unresolved.
Among them is one that would seem to require no extra investigative effort or even much thought, just some action — — the insistence of U.S. Supreme Court Justice Clarence Thomas to continue to rule on relevant cases despite the active participation of his politically active wife, Ginni, in various schemes to overturn the election result.
The Works of Ginni Thomas
The activities of Ginni Thomas as a would-be influential Republican back-door operative to facilitate communications among conspirators to create fake, alternative elector slates from the states have been well documented.
But with as much distasteful activity and circles of schemes as the committee undertook, Ginni Thomas’ work was small beer.
Ginni Thomas has a political group (as well as a government position on the Library of Congress Board of Trustees) with which she works that has been out and proud about its positions, and she testified openly to the committee — not relying on the Fifth Amendment like 30 of her potential co-conspirators — about her participation and email conversations among Mark Meadows, the then White House chief of staff, and state legislators about the role that fake Electoral College slates could play towards seeding enough confusion into voting results as to throw the presidential election to the House. A state-by-state vote there would narrowly guarantee Donald Trump would remain in the White House.
OK, you may agree or not that Ginni Thomas’ work was entirely legal in action, braced by free speech traditions, even if you believe that the scheme itself brushes the Constitution in a wrong legal way. She was contributing to a political effort, presumably out of genuine belief, that contributed to electoral fraud through fake state slates of voters.
The Role of Justice Clarence Thomas
The issue is that she is the wife of a Supreme Court justice. And while there is nothing “wrong” with her doing political work, there is something wrong about how Justice Thomas does not recuse himself from issues touching on the election and his wife’s involvement. These are issues now guaranteed to end up coming before the court, whatever decisions are made by the Justice Department in choosing which criminal cases to pursue towards those leaders at the center of Jan. 6 planning and coordination.
“It is critical that those responsible for the attack on the Capitol be held accountable and that the integrity of the Supreme Court not be tainted by conflicts of interest,” Citizens for Responsibility and Ethics in Washington President Noah Bookbinder said more than a month ago. “The Judiciary Committees have responsibility for the oversight of our judiciary and law enforcement agencies and investigating Ginni Thomas’s conduct and Justice Thomas’s failure to recuse is an essential exercise of that oversight responsibility.”
Justice Thomas has recused himself from 54 cases since joining the Supreme Court to avoid the perception of potential conflicts of interest, including 17 cases involving his son. He has never recused because of a potential conflict involving his wife and was the sole vote to keep the White House’s communications around the attempt to reject the election results secret despite his wife’s communications with the White House on related issues.
“It is hard to imagine something more damaging to the public trust in the Supreme Court than a Justice ruling on cases that could relate to their spouses’ attempts to overturn American democracy,” Bookbinder said.
There are no rules here for lifetime Supreme Court justices, only traditions that say fairness depends on efforts to assure impartiality — though other judges are held to ethics codes. Chief Judge John Roberts Jr., who tells us at every opportunity that he worries about the integrity and independence of the courts, could take Justice Thomas aside and tell Thomas to step away from these Trump-relevant cases, but he clearly does not see that as his role.
There will be no prosecution here, no criminal case referrals, no impeachment efforts, no further investigation by Congress, no sense of accountability for a Supreme Court justice who sits on others’ accountability.
It seems like it might have been worth a line in a wrap-up Jan. 6 investigation.
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