Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned in Brief. I’m your host, Preet Bharara.

Preet Bharara:

Today we’re going to talk about judicial ethics, and in particular, the ethics obligation of the most powerful jurists in the country, the justices of the Supreme Court. It’s an issue that has become more urgent in recent months as we have learned that Ginni Thomas, the wife of Justice Clarence Thomas, engaged in a pressure campaign to overturn the 2020 election results. Meanwhile, Justice Thomas himself has participated in several cases directly or indirectly involving the 2020 election results. One of those was the court’s decision in January requiring that Trump’s White House records be turned over to the House January 6th Committee. Only one Justice dissented, Clarence Thomas. Now, as of the time we’re recording this, Ginni Thomas has agreed to speak to that very committee about the events leading up to January 6th. So the questions are, should Justice Thomas have accused himself and should he do so going forward?

Preet Bharara:

To answer those and other questions, I reached out to Kathleen Clark, an expert in legal and government ethics. She’s a professor at the Washington University in St. Louis School of Law, and she also practices ethics in whistleblower law in Washington, DC. Professor Clark, thanks for joining us.

Kathleen Clark:

Thanks for having me. Glad to be here.

Preet Bharara:

So this is an issue that people have been talking about and complaining about and getting riled up about for some time. Let’s take a step back and could you describe for folks what the conduct is on the part of Justice Clarence Thomas’ wife, Ginni, that has led to this controversy?

Kathleen Clark:

There are a couple of different behaviors that Ginni Thomas has engaged in that are relevant here. She traded text messages, dozens apparently of text messages with then White House Chief of Staff Mark Meadows after the November 2020 election in an attempt to ensure that President Trump would stay in office. In those emails or text messages, she viewed the election results in really apocalyptic terms. So that’s one set of behaviors. In addition, she reached out to, I believe, lawmakers in Arizona and Wisconsin encouraging them to choose President Trump’s electors rather than Biden’s electors, even though Biden won both of those states. That latter fact may come into play to the degree that the Supreme Court would get involved with the question of these false electors. And in fact, I believe that that was the basis, I believe, for the Texas v. Pennsylvania case which Thomas participated in and issued a statement indicating that the Supreme Court should have taken up that case, although the court did not grant a cert on that case.

Preet Bharara:

Right. People can have views about whether or not Ginni Thomas’s conduct was appropriate or not, legitimate or not, legal or not, but people will ask the question, people who are not steeped in legal ethics, “What does any of that have to do with their husband?” They’re different people. They have different careers, they have different lives. They’re separate persons. Why does any of this affect the decision making or the propriety of decision making by Clarence Thomas?

Kathleen Clark:

Here’s why. Congress passed a statute that sets out when a Supreme Court justice, or frankly any federal judge, has to recuse. And that statute has several different standards. There’s a very general standard saying that a justice should recuse if the justice’s impartiality might reasonably be questioned. So that’s really general standard. And then there are some several more specific circumstances that require recusal, including if a judge’s or justice’s financial interest is at stake in a case. But that statute also indicates that non-financial interest can come into play and can require recusal. And here’s what the statute says. If the justice’s spouse has an interest, and it doesn’t have to be a financial interest, has an interest that could be substantially affected by the outcome of the proceeding, then the justice is required to recuse.

Kathleen Clark:

And here’s how that comes into play. It’s not that Ginni Thomas has a financial interest in these cases that come before the Supreme Court, but she could have a non-financial interest. For instance, she has agreed to testify before or speak to the January 6th committee, and it may be the case that there won’t be any kind of disagreement between her and the committee about the scope of her testimony, but if you’re-

Preet Bharara:

That’s unlikely.

Kathleen Clark:

Yeah, right.

Preet Bharara:

That’s unlikely, right?

Kathleen Clark:

Right. If there is a disagreement and if she does resist providing the information that the committee wants, then she has a stake in whether the Supreme Court, or perhaps any court, views the January 6th committee as being legally constituted and having the authority to gather the information it’s seeking. There are currently pending lawsuits where that is at issue, what the scope of the committee’s authority is and whether or not the committee has the authority to seek the information its subpoenaing. So today, I don’t know that there’s a conflict of interest, but if she resists the committee’s requests and if the litigation between the committee and these other individuals or witnesses gets up to the Supreme Court, that’s when Clarence Thomas, I believe, would have to recuse under this statute because she has an interest that could be substantially affected by the outcome of such cases.

Preet Bharara:

What about the case I mentioned in the introduction in which Clarence Thomas was the sole dissenter? Do you think he should have recused himself from that case or did that not present a sufficient conflict?

Kathleen Clark:

I think he should have. The facts are not quite so clear to me, but here’s my understanding. So in that case, Trump asked the Supreme Court to block the release of documents from NARA, the National Archives, to the January 6th committee. It’s possible that the texts between Meadows and Ginni Thomas may have been included in those White House records. I don’t know whether they are or whether they weren’t. But if they were, then Thomas should have, I believe, recused. He should not have participated, he should not have dissented because his wife had an interest, I would argue, in the non-disclosure of those text messages.

Preet Bharara:

Right. So here’s the big question. You said there’s a law, there’s a statute. I think you’re talking about Title 28 U.S.C. Section 455-

Kathleen Clark:

I am.

Preet Bharara:

… that has this language that you’ve described. And there’s a reasonable argument. Some can differ, but there’s a reasonable argument in favor of recusal in these circumstances. Why isn’t someone enforcing that?

Kathleen Clark:

There’s a huge problem with this statute, which is it’s not at all clear how to enforce this statute. In other words, a party may not know that the justice’s impartiality, or that the justice’s spouse say, has an interest that could be affected by the outcome of the proceeding.

Preet Bharara:

But here we know. So in a case where we know, we know so much about it that we’re doing a podcast on it, other people have talked about it. It’s not a criminal statute so a US attorney’s office can enforce it, and maybe there’s a separation of powers problem there also. But when Congress passed this law, who did they contemplate would enforce a law? And why pass a law that would have no enforcement mechanism and no force?

Kathleen Clark:

Well, Congress has been known to pass laws because they look good apart from what effects they have. Congress tends to tread lightly when it comes particularly to the US Supreme Court, and that may partly explain why Congress hasn’t made clear what the mechanisms are for enforcing this. But I think that the truth of the matter is this statute sets out legal standards, but its great weakness, I think, is in a lack of procedures for how to go about ensuring that these standards are met, and in particular when it comes to the Supreme Court for ensuring that a justice shouldn’t be applying this statute to themselves. So right now the Supreme Court justices rely on themselves to make these decisions on whether to recuse. They don’t even punt it to the rest of the court.

Preet Bharara:

Yeah, that’s convenient, isn’t it?

Kathleen Clark:

Well, there’s this concept that no person should judge their own case. And yet when it comes to this recusal statute, that’s exactly what happens. It’s frankly a really fatal weakness in this statute and in the scheme of judicial ethics, particularly for the Supreme Court.

Preet Bharara:

Yeah. So can I ask you, we’re talking about the Ginni Thomas issue and the likelihood of recusal or the propriety of recusal, I’ll give you a more clear cut case in the kind of thing that judges all over the country at lower levels certainly are required to recuse themselves. Let’s say that Justice Thomas or any other justice had a half a million dollars of stock in IBM, and a matter comes to the Supreme Court in which IBM is a direct party and the result of the Supreme Court’s decision will have a financial impact on the value of IBM’s stock. In that circumstance, given the lack of a mechanism for enforcement, if Justice Thomas, or any other Thomas, sat on that case and didn’t recuse himself, any consequence or no?

Kathleen Clark:

Yes, the consequence is that the public loses trust in the Supreme Court and in other courts where this has happened. And they’ve been-

Preet Bharara:

Right, but is there any direct consequence for the justice who chooses not to recuse himself in that circumstance?

Kathleen Clark:

I suppose in theory you could imagine a justice being impeached, right? But the justices and the judges have life tenure, and so that’s a pretty extreme response to this kind of thing.

Preet Bharara:

But that’s an available option technically and legally and constitutionally, right?

Kathleen Clark:

In theory. But in reality, no.

Preet Bharara:

Yeah, people are talking about it on public platforms.

Kathleen Clark:

Oh, of impeaching Thomas?

Preet Bharara:

Yeah, I’ve heard people talk about it. I’m not sure. I think I’ve heard an elected official or two talk about it. And the fact that some elected official is talking about doesn’t mean it’s likely to happen or should happen, but people have been talking about it.

Kathleen Clark:

So how many votes do we need in the Senate to remove someone from office?

Preet Bharara:

Yeah. No. I know. I’m with you. I’m with you. Let me ask you another question about Ginni Thomas just to parse out what are more clear or less clear cases of conflict or skepticism about the impartiality of a justice. If Ginni Thomas had not just been a witness or somebody who was imploring Mark Meadows and others in text messages to overturn the election, but instead she was retained to represent and does represent Donald Trump in all matters relating to January 6th, which the Department of Justice is investigating and the January 6th committee is obviously investigating, if you were a lawyer of record for Donald Trump, would that be an even more clear case for Clarence Thomas to recuse himself? And do you think he might in that circumstance?

Kathleen Clark:

So if she were a lawyer of record at the Supreme Court, then he would have to, okay? I think that’s a stronger case in the sense that it’s more closely analogous to other cases where courts have found recusal is required because the spouse or close relative of the judge has not just an ideological commitment as Ginni Thomas explained in her texts, but also has a professional reputational interest as well if we’re talking about her representing him not in unrelated matters, but in related matters. I think that’s a stronger case.

Preet Bharara:

So if you had the power of the pen and the authority to enact an enforcement mechanism, what would that look like?

Kathleen Clark:

Well, the first thing I’d say is that just when someone requests recusal, it shouldn’t, in the first instance, be the justice themselves Who makes that decision that they can punt it to another member of the court or to multiple members of the court. That’s the first thing. The other thing I’d say though is that what the financial conflict examples that you alluded to earlier tell us is that there needs to be much stronger disclosure, much more robust disclosure and timely disclosure for judges’ financial interest, because parties are not in a position to even know whether a judge or a justice currently has a conflicting financial interest because they’re depending on financial disclosure statements from the previous year, and that’s not sufficient to ensure impartiality and to prevent violations of this statute, of this recusal statute.

Preet Bharara:

Do you have a prediction on whether or not there will come a time in connection with this set of cases that Clarence Thomas will recuse himself?

Kathleen Clark:

Oh, I’m not optimistic about Clarence Thomas recusing himself. Yeah.

Preet Bharara:

By which you mean he’s definitely not?

Kathleen Clark:

I think it’s highly unlikely that he would, despite what I think is clear law requiring him to. But it turns out he’s not consulting me for ethics advice.

Preet Bharara:

Right. Nor I. Last question. It’s not a legal question. It’s a question about the psychology of justices generally and Clarence Thomas specifically. Why not just recuse himself? This issue of impartiality almost presents itself in a very strong fashion because I think lots of people of good faith who are reasonable have raised the question. And if the question has been raised in such a substantial way by experts like you and others, why not just recuse himself? Does he just not care? Do you have a view?

Kathleen Clark:

I believe that Justice Thomas has ideological commitments. And I think that he probably has greater confidence than most of us in his own analysis and his own probity, right? I’ve heard reference to article 3 Egos, and that must be particularly true for justices on the Supreme Court.

Preet Bharara:

I think you’ve just given us a title for this episode.

Kathleen Clark:

Yeah. And frankly, in preparation for talking to you with you, I went back and I read Justice Scalia’s statement refusing to recuse in the Energy Task Force litigation that involved Cheney and the fact that he had invited Cheney to go on a hunting trip with him and had this friendship with Cheney, right? I suspect that Justice Thomas would see himself in Scalia’s ilk in terms of not worrying about perhaps what the little people think, but relying instead on his own sense of what he ought to be doing and the power he ought to be exercising as a Supreme Court justice.

Preet Bharara:

Professor Kathleen Clark, thanks so much for being with us and explaining this to us in depth, but brief way.

Kathleen Clark:

Thank you so much.

Preet Bharara:

For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content including the weekly podcast I co-host with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

Preet Bharara:

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me, @PreetBharara, with the hashtag #AskPreet, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET, or you can send an email to letters@cafe.com.

Preet Bharara:

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producer is Adam Waller. The editorial producers are Sam Ozer-Staton and Noa Azulai. The audio producer is Nat Weiner, and the CAFE team is Matthew Billy, David Kurlander, Jake Kaplan, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.