Justice Clarence Thomas Should Not Bow out of Trump Disqualification Cases: Law Professor

In this handout provided by Congress.gov webcast, lead impeachment manager Rep. Jamie Raskin (D-M.D.) speaks on the third day of former President Donald Trump's second impeachment trial at the Capitol in Washington on Feb. 11, 2021. Congress.gov via Getty Images

U.S. Supreme Court Justice Clarence Thomas should not have to recuse himself from any future court rulings on whether former President Donald Trump should be disqualified from this year’s election, a legal expert said.

Law professor Jonathan Turley made the statement on his website on Jan. 2 as he was responding to Rep. Jamie Raskin (D-Md.), who demanded the justice’s removal from such cases during a recent CNN interview.

Mr. Raskin, a former law professor who served as an impeachment manager for President Trump’s second impeachment, told CNN that the former chief executive “is clearly disqualified from being on the ballot because he participated in insurrection.”

Mr. Raskin was referring to the disqualification clause in Section 3 of the 14th Amendment to the U.S. Constitution, which states:

“No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same[.]”

Mr. Raskin said President Trump disqualified himself as a 2024 candidate when he engaged in a “clear incitement of an insurrection and attempt[ed] to overturn the result in the 2020 election.”

And the pro-Trump activities of the justice’s wife, Ginni Thomas, should prevent Justice Thomas from hearing any cases related to the former president’s ballot eligibility, the lawmaker added.

Mr. Raskin said any reasonable person looking at the situation would say that “if your wife was involved in the ‘Big Lie’ and claiming that Donald Trump had actually won the presidential election, had been agitating for that, and participating in the events leading up to January 6, that you shouldn’t be participating [in the rulings].”

Push for Recusal

Democrats, who have characterized Republican efforts to contest the 2020 presidential election after Election Day as an affront to democracy, were angered that Ms. Thomas reportedly signed form letters urging state lawmakers in Arizona and Wisconsin to overturn President Joe Biden’s election victory. Democrats have also criticized her for engaging in conservative activism.

Ms. Thomas has also said she believes that the 2020 election was rigged.

Justice Thomas “absolutely should recuse himself. The question is, what do we do if he doesn’t recuse himself?” Mr. Raskin said.

The U.S. Supreme Court may soon weigh in on the disqualification issue.

The Colorado Supreme Court ruled 4–3 on Dec. 19 that President Trump’s name would not appear on the state presidential primary ballot. Then on Dec. 29, Maine Secretary of State Shenna Bellows, a Democrat, unilaterally ruled that President Trump would be excluded from her state’s primary ballot.

Both disqualification decisions are widely expected to be reviewed by the U.S. Supreme Court but the court hasn’t yet decided if it will take the cases.

Mr. Turley wrote that Mr. Raskin “raised eyebrows” when he suggested “there may have to be action taken” if Justice Thomas does not recuse himself from pending appeals over the former president’s disqualification from the two state ballots.

“Not only is there a weak basis for demanding such recusal, the suggestion of some type of response or retaliation raises ongoing concerns over efforts to influence or intimidate justices,” Mr. Turley wrote.

“Under this theory, Thomas would have to recuse himself from any election or Trump related case because of his wife’s advocacy. Justices on both the left and right have long applied a far more narrow view of recusal,” he added.

Although “there is nothing Congress can do to force Thomas off the appeal,” by saying action may have be taken against Justice Thomas, the congressman may be “encouraging new targeting of justices at their homes by protesters,” Mr. Turley wrote.

Intimidation of Justices

After a draft opinion of the U.S. Supreme Court’s ruling that overturned Roe v. Wade was leaked in 2022, activists held raucous protests outside the homes of conservative justices.

Threats were made against conservative justices. In June 2022, authorities foiled an attempt to assassinate Justice Brett Kavanaugh at his Maryland home. The same month, a Texas man was arrested for threatening to “kill everyone” at the U.S. Supreme Court with an AK-47 rifle.

Democrats had also demanded that Justice Thomas recuse himself from a case centered on President Trump’s claim that he enjoys presidential immunity from prosecution.

Democrats were concerned that if President Trump secured a win on presidential immunity, criminal cases pending against him in the District of Columbia, New York, Florida, and Georgia could be slowed down or even thrown out.

On Dec. 22, the U.S. Supreme Court dismissed special counsel Jack Smith’s emergency application seeking a speedy hearing in the case arising out of the election interference prosecution against President Trump that encompasses the Jan. 6, 2021, security breach at the U.S. Capitol, when lawmakers were voting to certify the 2020 presidential election results.

The Epoch Times has reached out to Justice Thomas for comment.