March 29, 2022

After New Revelations of Ginni Thomas’s Efforts to Overturn the 2020 Election, Senator Hirono, Colleagues Demand Explanation from Justice Clarence Thomas on Failure to Recuse from Key Supreme Court Decisions, Seek Future Recusals

WASHINGTON, D.C. – U.S. Senator Mazie Hirono (D-HI) joined Senator Elizabeth Warren (D-MA), Representative Pramila Jayapal (D-WA), and more than 20 of their colleagues in sending a bicameral letter to Chief Justice John Roberts and Justice Clarence Thomas of the U.S. Supreme Court demanding answers regarding Justice Thomas’s potential violation of federal ethics law after last week’s explosive reporting on the efforts of his wife, Ms. Virginia “Ginni” Thomas, to overturn the results of the 2020 election. Justice Thomas was the lone dissenting voice in a Supreme Court decision allowing Trump White House records to be turned over to the January 6th House Select Committee earlier this year.

In the letter, the lawmakers demanded a written explanation from Justice Thomas about his failure to recuse himself given these potential conflicts of interest, sought Justice Thomas’s recusal from future cases involving efforts to overturn the 2020 election or the January 6th attack on the Capitol, and called on Chief Justice Roberts to create binding, enforceable ethics rules for the Supreme Court.

“Justice Thomas’s participation in cases involving the 2020 election and the January 6th attack is exceedingly difficult to reconcile with federal ethics requirements… Justice Thomas has neither disclosed the extent of his knowledge about Ms. Thomas’s activities nor recused himself from multiple Court cases involving the 2020 election and the attempted insurrection that followed. In fact, Justice Thomas was the sole dissenting Justice who would have blocked the January 6th Committee’s access to presidential records involving the Trump Administration’s efforts to disrupt the peaceful transfer of power — records that could very well contain communications between Ms. Thomas and top White House officials given what we now know,” wrote the lawmakers.

Last week, the Washington Post and CBS News detailed Ms. Thomas’s efforts to persuade then-White House Chief of Staff Mark Meadows to overturn the results of the 2020 election. Between Election Day 2020 and the days following the January 6th attack on the Capitol, Ms. Thomas and Meadows exchanged 29 text messages, in which Ms. Thomas spread false theories about the election, urged Meadows to overturn the election results, and called for specific actions from the White House to help overturn the election. These revelations follow prior reporting about Ms. Thomas’s efforts to nullify the results of the 2020 election, including serving as one of the nine board members of a group that helped lead the “Stop the Steal” movement and calling for the punishment of House Republicans who participated in the U.S. House Select Committee investigating the January 6th attack.

In addition to raising concerns about whether Justice Thomas may have violated federal ethics law, the lawmakers noted the Supreme Court’s pattern of major ethics failures. Between 2003 and 2007, Justice Thomas failed to disclose $686,589 in his wife’s income from her work at the Heritage Foundation in violation of the Ethics in Government Act. Multiple Justices have failed to recuse themselves from cases before the Court while owning individual stocks in the parties, and Justices regularly accept lavish trips, donations to causes they support, and expensive memberships, in stark contrast to the gifts allowed under ethics restrictions imposed on other branches of government.

Given the serious potential conflicts of interest presented by Ms. Thomas’s efforts to overturn the 2020 election and Justice Thomas’s failure to recuse himself from these cases, the lawmakers called on Justice Thomas to immediately issue a written explanation for his failure to recuse himself and asked that he recuse himself from any future Supreme Court cases concerning the 2020 election and the January 6th attack on the Capitol. To fix the long pattern of ethics breaches at the Supreme Court, the lawmakers called on Chief Justice Roberts to commit to creating a binding Code of Conduct for the Court that includes enforceable provisions and a requirement that all Justices issue written recusal decisions. The lawmakers asked that Justice Roberts respond and make this commitment by April 28, 2022.

Senator Hirono has consistently championed more robust ethics and accountability for the federal judiciary, including the Supreme Court. She introduced the Judiciary Accountability Act of 2021, legislation to protect employees of the Federal judiciary from discrimination and harassment. She is also an original cosponsor of the Supreme Court Ethics Act of 2021, legislation directing the Judicial Conference of the United States to issue a judicial code of conduct for judges and justices of U.S. courts, including Justices of the Supreme Court.

Twenty-one of the signers of the letter are members of the House and Senate Judiciary Committees, including Jerrold Nadler (D-NY), Chair of the House Judiciary Committee; Hank Johnson (D-GA), Chair of the House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet; and Sheldon Whitehouse (D-RI), Chair of the Senate Judiciary Committee Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights. The letter was also signed by Senators Richard Blumenthal (D-CT); Jeff Merkley (D-OR); Ron Wyden (D-OR); Cory Booker (D-NJ); Alex Padilla (D-CA); Amy Klobuchar (D-MN); and Dianne Feinstein (D-CA); and Representatives Cori Bush (D-MO); Karen Bass (D-CA); David Cicilline (D-RI); Steven Cohen (D-TN); Madeleine Dean (D-PA); Veronica Escobar (D-TX); Sylvia Garcia (D-TX); Mondaire Jones (D-NY); Sheila Jackson Lee (D-TX); Ted Lieu (D-CA); and Deborah Ross (D-NC).

The full text of the letter is below and can be found here.

Dear Chief Justice Roberts and Justice Thomas:

We write regarding alarming new reports about Justice Thomas’s potential conflicts of interest in his role as a Supreme Court Justice—specifically with regards to the efforts of his wife, Ms. Virginia “Ginni” Thomas, to overturn the results of the 2020 election—and the urgent need for significant ethics reform at the Supreme Court.

Last week, the Washington Post and CBS News published a disturbing set of stories detailing Ms. Thomas’s efforts to persuade then-White House Chief of Staff Mark Meadows to “pursue unrelenting efforts to overturn the 2020 presidential election.” The stories document 29 text messages between Thomas and Meadows starting immediately after Election Day 2020 and ending only days after the January 6th attack on the U.S. Capitol. In the messages, Ms. Thomas “spread false theories, commented on cable news segments and advocated with urgency and fervor that the president and his team take action to reverse the outcome of the election,” calling for specific tactics such as the promotion of Sidney Powell—one of President Trump’s lawyers—and describing the election as “the greatest Heist of our History.” Meadows responded with his shared “belief that the election was stolen” and expressed his “solidarity of purpose and faith.”

These revelations—combined with prior reporting about Ms. Thomas’s efforts to nullify the results of the 2020 election—raise serious questions about Justice Thomas’s participation in cases before the Supreme Court involving the 2020 election and the January 6th insurrection.

Federal law clearly states the standards for a judge’s recusal from a case. Under 28 U.S.C. § 455, any judge—including a Supreme Court Justice—must disqualify himself from “any proceeding in which his impartiality might reasonably be questioned.” And any judge must do the same when he knows that his spouse has “any … interest that could be substantially affected by the outcome of the proceeding.” Ignorance or willful blindness is simply no excuse.

But given 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. Ms. Thomas was not simply another attendee at the January 6th “Stop the Steal” rally outside the White House; she was one of nine board members for a conservative political group that helped lead the “Stop the Steal” movement, she signed a letter calling on House Minority Leader Kevin McCarthy to punish Republicans who participated in the U.S. House Select Committee investigating the January 6th attack, and as last week’s reporting indicates, she was in direct communication with the White House and congressional aides about strategies to overturn the 2020 presidential election as the Trump Administration was coordinating litigation before the Supreme Court on the topic. Despite his wife’s potential “interest” in these proceedings and ample rationale to “reasonably question” his impartiality, Justice Thomas has neither disclosed the extent of his knowledge about Ms. Thomas’s activities nor recused himself from multiple Court cases involving the 2020 election and the attempted insurrection that followed. In fact, Justice Thomas was the sole dissenting Justice who would have blocked the January 6th Committee’s access to presidential records involving the Trump Administration’s efforts to disrupt the peaceful transfer of power—records that could very well contain communications between Ms. Thomas and top White House officials given what we now know.

Independent legal experts and scholars across the political spectrum have amplified these concerns. As one expert concluded after reviewing the new disclosures, Justice Thomas “had an obligation not to sit in any case related to the election, the Jan. 6 committee or the Capitol invasion.” Another expert argued that Justice Thomas should not have been involved in disputes about the 2020 election or Congress’s investigation of the January 6th attack considering that “his spouse’s reputation, and even potential liability, [was] at stake.” Or as yet another expert explained, “[w]hen your spouse is conversing with people who have some control over litigation to challenge an election, you shouldn’t be sitting on the Supreme Court deciding that election or any aspect of it.”

Unfortunately, this is not the first major ethics breach at the Supreme Court in recent years. Justice Thomas failed to disclose his wife’s income from her work at the Heritage Foundation on five occasions between 2003 and 2007—totaling $686,589—in violation of the Ethics in Government Act. Notwithstanding a federal law requiring judges to disqualify themselves from proceedings whenever they have a “financial interest in … a party to the proceeding … , however small,” multiple Justices have failed to recuse themselves from cases before the Court while owning individual stocks in the parties. In 2004, Justice Scalia went on a hunting trip with Vice President Cheney while the Supreme Court was actively considering a case in which Cheney was a defendant. And the Justices regularly accept “expensive memberships and memorabilia, donations to causes they support, and lavish international trips,” in stark contrast to the gifts allowed under ethics restrictions imposed on other branches of government.

As Congress considers its response to these latest revelations involving Justice Thomas’s potential violations of ethics laws, the Supreme Court has the responsibility and the power to act now. In particular, given the serious conflict-of-interest issues presented by Ms. Thomas’s leadership in the efforts to overturn the 2020 presidential election, we call upon Justice Thomas to immediately issue a written explanation for his failure to recuse himself in prior Supreme Court cases involving efforts to overturn the 2020 election or the January 6th attack on the Capitol and promptly recuse himself from any future Supreme Court cases involving efforts to overturn the 2020 election or the January 6th attack on the Capitol. And we request that Chief Justice Roberts commit no later than April 28, 2022 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 decisions.

Chief Justice Roberts has often spoken about the importance of the Supreme Court’s “credibility and legitimacy as an institution.” That trust, already at all-time lows with the American public, must be earned.

Thank you for your attention to this important matter.

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