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Rep. Jamie Raskin Drafts Plan To Force Justices Thomas, Alito To Recuse

'Cases of judicial bias' could be 'apparent to the world, even if they may be invisible to the judges involved'

Rep. Jamie Raskin Drafts Plan To Force Justices Thomas, Alito To Recuse

In recent months, Democrats have called for two U.S. Supreme Court justices to recuse themselves from a high-stakes case over whether former President Donald Trump has immunity from criminal prosecution for actions he took while in office and a separate case concerning January 6 protestors.

Justice Clarence Thomas has been asked to recuse himself over actions undertaken by his wife, Ginni, following the 2020 election. In a report from the Washington Post, Ginni is said to have been sympathetic to January 6 protestors in addition to lobbying lawmakers to “fight back against fraud.”

Justice Samuel Alito is facing calls to step aside over flags that were displayed outside of two of his homes that critics claim to be supportive of the “stop the steal” movement. Alito explained that both flags were flown by his wife, who is jointly titled to the home and entitled to display flags of her choosing.

Given they had no direct action themselves in either controversy, both justices have declined recusal requests, even in the face of intensifying partisan rancor over the episodes.

Trump recently praised Alito for his “courage” in refusing to cave to demands for him to step down from the two cases.

Now, U.S. House Rep. Jamie Raskin (D-Md.) has outlined a strategy whereby they two justices could be forced to recuse from Trump v. United States, the case that will decide whether Trump has absolute immunity from criminal prosecution, and Fischer v. United States, which will decide whether Jan. 6 rioters, and Trump, can be charged under a statute that criminalizes “corruptly” obstructing an official proceeding.

“Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection. Each justice decides for him- or herself whether he or she can be impartial,” Raskin wrote in an op-ed detailing the plan.

However, he suggests that the Department of Justice (DOJ) “can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.”

Forming the legal basis for his theory are “two powerful textual authorities” — the due process clause of the U.S. Constitution and a federal statute (28 U.S.C. Section 455) mandating judicial disqualification for questionable impartiality.

Raskin argues that constitutional and statutory standards for recusal treat Supreme Court justices like any other judges and require a judge to recuse if their “impartiality might reasonably be questioned.”

“This recusal statute, if triggered, is not a friendly suggestion,” Raskin says.

“It is Congress’s command, binding on the justices, just as the due process clause is,” he adds. “The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.”

Raskin, who represents Maryland’s 8th Congressional District, taught constitutional law for more than 25 years. He also served as the lead prosecutor in Trump’s second impeachment trial.

In prodding other officials to take immediate action, he says, “the Constitution and Congress’s recusal statute provide the objective framework of analysis and remedy for cases of judicial bias that are apparent to the world, even if they may be invisible to the judges involved.”

The Court heard oral arguments in Trump v. United States on April 25 and has not yet issued a decision. Rulings on that case and Fischer v. United States are expected this month. Legal experts believe both cases could influence the outcome of the 2024 election.

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