Supreme Court Justice Samuel Alito remains determined to weigh in on cases pertaining to the January 6 insurrection and the 2020 presidential election, despite the controversy over two flags carried by insurrectionists being displayed outside two of his homes.
But according to one top House Democrat, the Department of Justice still has card it can play in order to force both Alito and Supreme Court Justice Clarence Thomas — whose wife, Ginni Thomas, has also showed solidarity with the insurrectionist cause — to recuse themselves. In a New York Times op-ed, Rep. Jamie Raskin (D-Maryland), who is the ranking member of the House Oversight Committee, wrote that Attorney General Merrick Garland's DOJ and several other top DOJ officials could continue to press the issue with the rest of the Court.
He argued that Garland, in conjunction with the U.S. Attorney for the District of Columbia, an appointed special counsel and Solicitor General Elizabeth Prelogar (the DOJ official tasked with making arguments before the Supreme Court) "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."
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"The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality," Raskin wrote, naming the specific statute in federal code. "The Constitution has come into play in several recent Supreme Court decisions striking down rulings by stubborn judges in lower courts whose political impartiality has been reasonably questioned but who threw caution to the wind to hear a case anyway."
"This statute requires potentially biased judges throughout the federal system to recuse themselves at the start of the process to avoid judicial unfairness and embarrassing controversies and reversals," he continued. "This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is."
For Alito and Thomas to not recuse themselves despite the conflicts multiple legal observers have brought up is particularly noteworthy in the current Supreme Court term, as justices are weighing in on several major cases that directly involve former President Donald Trump. One case is the pending decision on whether presidents have absolute immunity from criminal prosecution for all acts carried out while in office. The other case involves a January 6 rioter challenging the legality of a charge he's facing for "corruptly" obstructing an official proceeding.
Raskin wrote that his call for the DOJ to force Alito and Thomas' recusal wasn't just for the cases currently before the Court: He viewed it as essential to maintain the system of checks and balances.
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"The Supreme Court cannot disregard this law just because it directly affects one or two of its justices," he added. "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."
Final decisions in the cases still pending review by the Supreme Court are expected in the coming weeks. If the 6-3 conservative majority agrees with Trump that all presidents have total criminal immunity, it would effectively end Department of Justice special counsel Jack Smith's two prosecutions of the former president.
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Click here to read Raskin's full op-ed in its entirety (subscription required).