Consider the following hypothetical: Suppose Supreme Court Justice Ketanji Brown Jackson’s husband happened to be a well-known crypto advocate and an early investor in Sam Bankman-Fried’s crypto exchange FTX. As you may have heard, the exchange collapsed, and SBF was recently convicted of criminal fraud; he intends to appeal. Now suppose that the case ends up before the Supreme Court.
Under those circumstances, is there any question that Justice Jackson would need to recuse herself from the case? After all, her husband could be either a co-conspirator or a victim. Either way, he — and she, by extension — has an interest in the outcome of the prosecution.
I pose the hypothetical not because there is any reason to believe that is true — Justice Jackson’s husband, for the record, is a surgeon in Washington — but because it illustrates why Supreme Court Justice Clarence Thomas should recuse himself from reviewing the Justice Department’s prosecution of Donald Trump for trying to overturn the 2020 election, as well as this week’s Colorado state court ruling disqualifying Trump from appearing on the state’s primary ballot because he engaged in an “insurrection” within the meaning of the 14th Amendment.
In a surprising turn of events, the Justice Department’s prosecution is now in front of the court as a result of special counsel Jack Smith’s request for the justices to quickly review Trump’s claim that he is immune from criminal prosecution. The claim is absurd, but unless the court resolves the question in the Justice Department’s favor soon, the prospect of a trial in the case next year is in jeopardy — despite the fact that that is what a large majority of Americans want. There is now a similar need to resolve Trump’s constitutional eligibility to run for reelection in order to avoid a patchwork of different rulings and confusion about what should happen.
Congressional Democrats urged Thomas last week to recuse himself from the Justice Department’s criminal case. They argue that his wife, Virginia “Ginni” Thomas could be a material witness in the prosecution as a result of her post-election support for keeping Trump in office.
Here is a better reason: Justice Thomas should recuse himself because Ginni Thomas — an apparent true believer in Trump’s election-fraud claims — is a victim of Trump’s alleged crimes. That means that both Ginni Thomas and Justice Thomas have a direct reputational stake in the outcome of the proceedings — one that further calls into serious question the justice’s ability to render an independent decision strictly on the merits of either case.
A quick refresher on the facts: In the weeks following the election, Ginni Thomas sent then-White House Chief of Staff Mark Meadows a series of unhinged text messages echoing Trump’s false claims of election fraud, urging Meadows to prevent “Biden and the Left” from “attempting the greatest Heist of our History” and imploring Meadows to “save us from the left taking America down.” She lobbied lawmakers in at least two battleground states to overturn Biden’s win and attended the rally on........