Rep. Jamie Raskin (D-MD) suggested that the Department of Justice should force Supreme Court Justices Samuel Alito and Clarence Thomas to recuse themselves from the Jan. 6-related cases they will soon consider.
Alito and Thomas have both been facing intense pressure to recuse themselves from a case deciding whether or not Trump is immune from prosecution over actions taken while he was president. Alito has explicitly said he will not recuse himself, while Thomas doesn’t appear to be prepared to either. In an op-ed for the New York Times, Raskin suggested there is another way to get them off of the case: using the DOJ.
Raskin argued that Attorney General Merrick Garland and the DOJ can invoke the Constitution to force 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 said that other justices on the Supreme Court can raise the matter on their own, giving increased legitimacy to the proceeding. The ranking member of the House Oversight Committee gave a series of historical examples showing why he believes they must act.
Raskin concluded by suggesting that the need for other justices to move to recuse Thomas and Alito was essential.
“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 over his wife’s involvement in “Stop the Steal” activities around the 2020 presidential election. Alito faces calls to recuse himself over his residences flying two flags that Democrats claim are connected to the Jan. 6 riot.
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The two cases that Democrats want the justices to recuse themselves over are Trump v. United States, where the court must decide if Trump has any immunity from prosecution in the context of the 2020 election subversion case brought by special counsel Jack Smith.
The other case involves a question of whether hundreds of Jan. 6 riot defendants were wrongfully charged under a long-standing obstruction statute when the certification of President Joe Biden’s electoral victory was briefly interrupted due to the riot.
