With special counsel Jack Smith pressing the Supreme Court to quickly take up Donald Trump’s immunity appeal, the question arises: Will Justice Clarence Thomas recuse himself?
Notably, Thomas didn’t participate when the court rejected John Eastman’s Jan. 6-related petition in October. But Thomas didn’t provide a rationale at the time for recusing himself from the case of his former law clerk, the MAGA lawyer who’s an unindicted alleged co-conspirator in Trump’s federal election interference indictment that’s pending before the justices. (Eastman also is one of Trump’s co-defendants in Georgia.)
So there isn’t an explicit standard from Thomas to compare against here and, as Justice Samuel Alito’s unconvincing explanation to not recuse himself recently reminded us, the decision to step aside is up to the justices themselves.
Prior to his recusal in the Eastman case, Thomas already had participated in Trump/Jan. 6 litigation, casting the lone dissenting vote in the former president’s favor when the court rejected Trump’s attempt to block the release of records regarding the Capitol attack. Democrats have called for Thomas to recuse himself from Jan. 6-related cases in light of his wife’s efforts to overturn the 2020 presidential election (Ginni Thomas communicated with Eastman about the election at the time).
Obviously, there’s overlap in the subject matter of the Eastman case and Trump’s election case in Washington, but there’s no indication thus far that Thomas will be stepping aside here. On Monday, the high court agreed to expedite its consideration of whether to take up Smith’s petition to leapfrog the appeals court as the Justice Department seeks to keep Trump’s March trial date on track in D.C. Trump’s response to Smith’s request for high court review is due Dec. 20.
How Thomas acts in this latest case could provide more insight into why he recused himself from the Eastman petition. Whatever he decides, it would be helpful to have an explanation from the justice.
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