Rep. Jamie Raskin (D-MD) has proposed that the Department of Justice should compel Supreme Court Justices Samuel Alito and Clarence Thomas to recuse themselves from upcoming Jan. 6-related cases.
Alito and Thomas are under significant pressure to step aside from a case determining if Trump is immune from prosecution for actions taken during his presidency. Alito has clearly stated he will not recuse himself, and Thomas seems unlikely to do so either. In an op-ed for the New York Times, Raskin suggested another means to remove them from the case: involving the DOJ.
Raskin argued that Attorney General Merrick Garland and the DOJ can use the Constitution to mandate a recusal.
“The constitutional and statutory standards apply to Supreme Court justices,” he wrote. “The Constitution, and the federal laws under it, is the ‘supreme law of the land,’ and the recusal statute explicitly treats Supreme Court justices like other judges: ‘Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.’ The only justices in the federal judiciary are the ones on the Supreme Court.”
“This recusal statute, if triggered, is not a friendly suggestion,” Raskin continued. “It is Congress’s command, binding on the justices, just as the due process clause is. 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.”
The Maryland Democrat also noted that other Supreme Court justices could raise the issue themselves, adding legitimacy to the proceedings. Providing historical examples, Raskin illustrated why he believes action is necessary.
Raskin concluded by emphasizing the importance of other justices moving to recuse Thomas and Alito.
“But 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,” he wrote. “This is not really optional for the justices.”
Thomas faces calls to recuse himself due to his wife’s involvement in “Stop the Steal” activities related to the 2020 presidential election. Alito faces calls to recuse himself because of flags flown at his residences that Democrats claim are linked to the Jan. 6 riot.
The two cases that Democrats want the justices to recuse themselves from are Trump v. United States, concerning whether Trump has any immunity from prosecution in the 2020 election subversion case brought by special counsel Jack Smith.
The other case questions whether hundreds of Jan. 6 riot defendants were wrongfully charged under a longstanding obstruction statute when the certification of President Joe Biden’s electoral victory was temporarily disrupted due to the riot.
