Mar 29, 2022

The Ginni Thomas texts.

The Ginni Thomas texts.

Her activism has caused a lot of controversy.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

We're covering Ginni Thomas and Clarence Thomas. Plus, an important update in Ukraine and some quick hits related to January 6th.

Clarence Thomas (right) swears in Sonny Perdue as the 31st Secretary of Agriculture. Photo by Preston Keres
Clarence Thomas (right) swears in Sonny Perdue as the 31st Secretary of Agriculture. Photo by Preston Keres

Quick hits.

  1. A federal judge ruled on Monday that former President Trump and John Eastman, a lawyer who advised him on how to overturn the 2020 election, “more likely than not” committed felonies, including obstructing the work of Congress. (The ruling)
  2. In a 9-0 ruling, the House's Jan. 6 select committee voted to advance contempt charges on Dan Scavino and Peter Navarro, two Trump aides. The referral now goes to the full House for a vote. (The vote)
  3. The White House released a $5.8 trillion budget for Fiscal Year 2023, including a 20% tax on households with a net worth of over $100 million and an increase in military and police spending. (The pivot)
  4. Florida Gov. Ron DeSantis signed a parental rights bill dubbed the "Don't Say Gay" bill by critics into law. (The bill)
  5. Russian oligarch Roman Abramovich and Ukrainian peace negotiators suffered suspected poisoning after a meeting with Russian negotiators in Kyiv. (The allegations)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.


Today's topic.

Virginia "Ginni" Thomas. The conservative activist and wife of Supreme Court Justice Clarence Thomas caused a stir last week when her text messages about January 6th became public. The messages were leaked to the press after Mark Meadows, the former chief of staff to President Trump, handed over 9,000 pages of documents to the January 6 committee, including the texts, as part of Congress's investigation into the events at the Capitol that day.

In the texts Thomas sent to Meadows, she repeatedly urged him to use his power to overturn the vote. “I can’t see Americans swallowing the obvious fraud. Just going with one more thing with no frickin consequences,” she wrote. “We just cave to people wanting Biden to be anointed? Many of us can’t continue the GOP charade.”

Via The Washington Post, who originally reported the texts:

On Nov. 10, after news organizations had projected Joe Biden the winner based on state vote totals, Thomas wrote to Meadows: “Help This Great President stand firm, Mark!!!...You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.” When Meadows wrote to Thomas on Nov. 24, the White House chief of staff invoked God to describe the effort to overturn the election. “This is a fight of good versus evil,” Meadows wrote. “Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues. I have staked my career on it. Well at least my time in DC on it.”

At another point, Thomas messaged Meadows — quoting a far-right website — that the “Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.”

Thomas also referenced messages she sent to Jared, presumably Jared Kushner, Trump's son-in-law and top advisor. Thomas had attended the Jan. 6 "Stop the Steal" rally, but says she left before Trump spoke. John Eastman, whose memo describing how Trump could overturn the 2020 election became national news, clerked for Clarence Thomas and is said to have communicated with Ginni Thomas in the days following the election.

In January of 2022, when the Supreme Court rejected Trump's request to block the transfer of White House records to the Jan. 6 committee, Justice Thomas was the only justice to vote in dissent. That same month, Jane Mayer published a piece in The New Yorker alleging that Clarence Thomas has ruled in cases where Ginni Thomas had direct financial entanglements.

Previously, Ginni Thomas has tried to create some distance from her husband.

“Like so many married couples, we share many of the same ideals, principles, and aspirations for America,” she said in a March interview with the Free Beacon. “But we have our own separate careers, and our own ideas and opinions too. Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”

Now, many Democrats are calling for Thomas to recuse himself from any Supreme Court case regarding the Jan. 6 riots at the Capitol, and Rep. Ilhan Omar (D-MN) has even suggested he should be impeached. Impeachment of a Supreme Court justice has only been attempted once, in 1804, and it failed. Only one justice, Abe Fortas, has ever been forced to step down (he resigned in 1969 after alleged financial conflicts).

Recusals, however rare, have happened. Justice Antonin Scalia recused himself in a case about the pledge of allegiance because he had delivered a speech criticizing the litigant's arguments weeks before it arrived before the Court. Justice Thomas recused himself from a 1996 case involving a military academy that his son attended. Justice Stephen Breyer recused himself from a case that had been heard by his brother Charles, also a judge, on a lower court. Justice Brett Kavanaugh recused himself without explanation from a case tied to a family member in 2021. And just last week, nominee Ketanji Brown Jackson said she'd recuse herself from a case involving admissions at Harvard. Jackson attended Harvard and is on Harvard’s board of overseers.

Below, we'll take a look at some reactions from the right and left, then my take.


What the right is saying.

  • The right says the left is inventing a new standard to box Thomas out of the court, one liberal justices never follow.
  • They argue that Ginni Thomas is the victim of a smear campaign.
  • Some argue that no spouse of any justice has ever been targeted in this way.

Mark Paoletta said the legacy media and liberals are "demanding a new standard for recusal that has no place in the law or in past practice."

"Many judges are married to people who work in politics and public policy, and they frequently decide cases on which their spouses have opined," he wrote. "The recusal statute requires judges to recuse if their families could financially gain from a decision or if a reasonable observer might question their impartiality. D.C. Circuit Judge Nina Pillard, for example, voted not to rehear a case rejecting President Trump's refusal to produce his tax returns in response to a congressional subpoena. That was exactly what her husband, the ACLU's litigation director, advocated in an article reviewing the lower court decision.

"Ninth Circuit Judge Stephen Reinhardt, a liberal icon, participated in a case even after his wife—the chief of an ACLU chapter—commented on the lower court opinion. Her ACLU chapter even submitted a brief to the district court. Reinhardt defended his decision not to recuse, writing his wife's 'views are hers, not mine, and I do not in any way condition my opinions on the positions she takes regarding any issues.' Ethics experts defended Reinhardt's decision," Paoletta said. "The Supreme Court has long rejected this 'marriage penalty.' In light of the growing number of judges' spouses and family members practicing law, the Supreme Court issued a Statement of Recusal Policy in 1993, signed by seven Justices. Applying the recusal statute's criteria, the policy says a Justice should not recuse because of a family member who is not involved with the current litigation and who cannot receive compensation from the case's outcome."

The Wall Street Journal editorial board said "the messages certainly aren’t flattering to Mrs. Thomas, who has long been active in conservative political circles.

"They show that, distraught by the election result, she indulged some of the nuttier election-fraud theories when the Trump campaign was challenging the results in court," the board wrote. "Mrs. Thomas suggests that lawyer Sidney Powell be 'the lead and the face' of the Trump legal team. Ms. Powell is being sued for defamation by a voting-machine company for peddling falsehoods. There is no evidence that voting machines were manipulated to change votes in 2020. Even the Trump team dumped Ms. Powell as it concluded she had no evidence... Mrs. Thomas has admitted to attending the Jan. 6 ‘Stop the Steal’ rally but says she left early, and there’s no evidence to date that she played a role in organizing the rally that became a riot.

"All of which raises the question of why these messages have leaked. There’s no reason to make them public now, and maybe never if they are tangential to what happened on Jan. 6. As a private citizen, Mrs. Thomas can believe all the crank theories she wants, and she has the right to participate in politics even as the spouse of a Justice. The leak may have been an act of revenge against Mrs. Thomas for signing a letter from conservative activists in December 2021 that objected to the creation of the Jan. 6 committee and called on the House GOP to expel committee members Liz Cheney and Adam Kinzinger from their conference. The leak’s timing suggests another purpose is to damage Justice Thomas as the Supreme Court is preparing to hand down major decisions on gun and abortion rights.”

In American Greatness, Horace Cooper said another leftist smear attempt falls flat.

"Never before has the spouse of a justice been targeted in this way," Cooper wrote. "In fact, in Washington, it used to be verboten to go after the spouse of any Washington figure. In recent years she has worked with the conservative think tank the Heritage Foundation, as well as helping build Turning Point USA (TPUSA) into one of the strongest conservative groups for young Americans in the nation. Now the Left wants to impute her beliefs to her husband in his role as associate justice of the Supreme Court and argue that he must recuse himself from any case in which she has even the slightest opinion.

"Could you imagine Justice Ruth Bader Ginsburg being asked to recuse herself from any tax cases that come before the Supreme Court because her husband was a noted D.C. tax attorney?" he asked. "Although it is common for the Left to take an embellished narrative and run with it, there has been absolutely no evidence to support the claim that Thomas had any involvement with any of the criminal acts charged after January 6. But articles from the Los Angeles Times, the New York Times, and Market Watch have engaged in a coordinated attack against Thomas... This totally unworkable recusal standard has been trotted out solely because Justice Thomas is the most influential member of the Supreme Court. But it is for his commitment to the Constitution and its precepts that he is now the most widely known and highly regarded member of the Court."


What the left is saying.

  • Some argue that it isn't the text messages, but Thomas's activism that is the main concern.
  • Others say the Court is responsible for navigating even a perceived threat to impartiality.
  • Many argue that Thomas’s lone dissent in the National Archives case is concerning.

James Downie said the "texts themselves aren't the issue."

"The problem lies in a late November message to Meadows in which Thomas refers to a reassuring conversation with her 'best friend.' It’s hard not to read that as a reference to her husband — who once described their partnership as 'equally yoked,'" Downie wrote. "Even [Sen. Rob] Portman (R-OH) admitted, 'if a case comes before [Thomas] that’s exactly on point, … that might be an issue where he would think about' recusal. Of course, such a case already has come before the court: In January, Thomas was the lone dissenter when the high court rejected former president Donald Trump’s efforts to block the release of administration records related to Jan. 6. Did Thomas dissent knowing — or suspecting — that his wife’s text messages might be among those records?

"Second, what, if any, other 2020 election cases did the Thomases discuss, and what was the extent of Ginni Thomas’s lobbying of the Trump administration?" Downie asked. "This isn’t the first time ethical boundaries have been questioned when it comes to the Thomases. As the New Yorker’s Jane Mayer reported in January, Ginni Thomas received $200,000 in 2017 and 2018 from a group asking the high court to uphold Trump’s 'Muslim travel ban,' which Justice Thomas voted to do in June 2018. In 2011, the justice amended his financial declarations after previously failing to disclose $680,000 his wife was paid by the Heritage Foundation several years before."

The Washington Post editorial board said she is now a "problem" for the Court.

"Ms. Thomas flooded Mr. Meadows’s phone with bizarre far-right conspiracy theories about ballot watermarks, secret military operations and the possibility of locking up Democrats and journalists on barges off Guantánamo Bay," the board wrote. "This raises questions about Justice Thomas’s refusal to recuse himself from cases involving Jan. 6. In one text, Ms. Thomas talked about having a conversation with her 'best friend,' apparently about the election fight. Did Ms. Thomas influence her husband’s thinking? Did Justice Thomas decline to recuse because he did not want to reveal the depth of his wife’s involvement? Justice Thomas was the only member of the court who voted against turning over White House communications to the committee.

"Unfortunately, Ms. Thomas has abused the good faith others have offered her husband, pushing the limits of the ethical gray areas these considerations create," the board said. "Justice Thomas must recuse himself whenever his wife has a financial stake in a case. The New Yorker’s Jane Mayer reported that Ms. Thomas took more than $200,000 from right-wing activist Frank Gaffney’s Center for Security Policy as Mr. Gaffney asked the court to uphold Mr. Trump’s Muslim ban, which Justice Thomas voted to do. Justice Thomas must also recuse himself from cases that could substantially affect his wife in other ways. That includes litigation regarding the Jan. 6 committee, which is examining Ms. Thomas’s communications."

In The New York Times, Jesse Wegman said Ginni and Clarence Thomas have "done enough damage."

"Perhaps Justice Thomas was not aware of his wife’s text-message campaign to Mr. Meadows at the time. But it sure makes you wonder, doesn’t it?" he wrote. "And that’s precisely the problem: We shouldn’t have to wonder. The Supreme Court is the most powerful judicial body in the country, and yet, as Alexander Hamilton reminded us, it has neither the sword nor the purse as a means to enforce its rulings. It depends instead on the American people’s acceptance of its legitimacy, which is why the justices must make every possible effort to appear fair, unbiased and beyond reproach.

"That may seem naïve, particularly in the face of the crippling assaults on the court that Mitch McConnell and his Senate Republicans have carried out over the past six years in order to secure a right-wing supermajority that often resembles a judicial policy arm of the Republican Party — starting with their theft of a vacancy that was President Barack Obama’s to fill and continuing through the last-second confirmation of Amy Coney Barrett while millions of voters were already in the process of casting Mr. Trump out of office," he wrote. "And yet the public’s demand for basic fairness and judicial neutrality is not only proper but critical to the court’s integrity, as the justices, whoever nominated them, are well aware."


My take.

Today is one of those fateful days where I can say neither side is really articulating my own view here.

So, a few things out of the gate: For starters, Justice Thomas's dissent in the case where Trump tried to block the National Archives from handing over documents was not unexpected. He has long been a staunch believer in executive privilege, and his ruling fell in line with other rulings he's made. There's no evidence that it was because of anything to do with his wife. It would have been odd if he didn’t dissent in that case, given his view of presidential power. Furthermore, Ginni Thomas’s texts to Meadows were apparently discovered in the documents Meadows handed over to Congress, not, as far as we know, from documents that may have existed in the National Archives trove.

Second, it's important to understand that there is no replacement for a recused justice on the Supreme Court. Unlike the lower courts, recusal has ground-shifting consequences at SCOTUS, so it isn't a one to one comparison. Third, suggesting impeachment here — as Reps. Omar and Alexandria Ocasio-Cortez now have — is over the top. It's comical, really. It's the kind of thing that makes conservatives view them the same way many liberals view someone like Rep. Madison Cawthorn (R-NC). It makes them appear to be unserious members of Congress with little understanding of precedent. No Supreme Court justice is ever going to get impeached (nor should they) for their spouse's political activism.

Finally, I'm not going to spend much time on Ginni here, but suffice it to say her political views are not just frightening, but outlandish. In just the few texts we have from her, it's clear she at times has subscribed to just about every single conspiracy about election fraud out there (from "watermarks" to the nonsense Sidney Powell was trafficking). It's a scary thought to me that someone as smart as she is, operating in such an elite Washington D.C. circle, seemed to be so susceptible to these theories in the days after the election, especially given how obviously untrue they were in real time.

With that out of the way, the defenses from "Team Thomas" have also bordered on laughable. Just as ridiculous as it was to believe Hunter and Joe Biden never discussed each other's work, it is equally ridiculous to believe that Clarence and Ginni Thomas don't talk about her activism or what is happening at the court. Of course they do. Their careers are deeply linked and anyone who believes they don't talk about this stuff is simply too naive or partisan to look at this honestly.

Paoletta is right to point out that many past spousal conflicts have been ignored by the court, even when the conflict was as serious as a spouse working for an entity that was literally filing a legal brief before the Court. But just because it’s happened before doesn’t mean it should continue. As often as these conflicts have been ignored, they've also been navigated. Remember, the Court's responsibility is to prevent even the appearance of a conflict of interest, let alone a tangible one. And the aforementioned examples of recusals are proof aplenty of justices having had the good sense to avoid such an appearance. Not only that, but plenty of spouses have done the opposite of what Ginni Thomas did. Ruth Bader Ginsburg's husband spent a lot more time teaching after she became a justice. John Roberts' wife retired from practicing law entirely and joined an anti-abortion group.

Which brings me to my view. On a technical level, it is true that from a rules and precedent perspective, there is no reason Thomas should recuse himself. But legal experts also disagreed about whether Ketanji Brown Jackson needed to recuse herself from the Harvard case, yet she did anyway, because it was the right thing to do for appearances’ sake.

My issue is that the rules and precedent are broken. Thomas should recuse himself from any cases related to Jan. 6 because it's the proper thing to do to avoid even the appearance of a conflict of interest, which is the federal standard justices claim they try to follow. He should recuse himself because it would set a precedent for other justices to do the same. He should recuse himself because his wife obviously played a prominent role in the activism that led to the events of Jan. 6, and because at some point his attachment to her is likely to cloud his judgment on any case related to that day (if it comes before the court again).

The fact that Supreme Court justices have no codified ethics standards with which to navigate these moments is a travesty, and a product of the court's own determination that it doesn't need them. Go figure. As Paoletta noted in his defense of the Thomases, the Supreme Court has made the rules about when a recusal should happen in the case of a spousal conflict (limiting it to spouses receiving compensation or being involved in the litigation).

The obvious counterpoint is why on earth would we let the Supreme Court draft the ethics codes for the Supreme Court? Of course justices want to narrowly define when a recusal is required. That doesn't mean it's what is good for the court or the country. And this isn't a "marriage penalty" either. We're not asking Ginni Thomas to abandon her career — we're asking Clarence Thomas to recuse himself from a case. Which is what we should be doing, because the alternative — prohibiting spouses of justices from having prominent political careers — would be worse.

So, yes, we would be creating a new standard by holding Thomas's feet to the fire, and we should create that new standard. It is, frankly, bonkers that it doesn't already exist. Of course a justice shouldn't be able to rule over a case where their spouse — or son or daughter or uncle or best friend — is involved, legally or financially. Of course! It's sheer nonsense that this hasn't always been the case.

So why not start now?

Have thoughts about "my take?" You can reply to this email and write in or leave a comment if you're a subscriber.


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A story that matters.

One day after peace negotiations, Moscow says it will "drastically reduce" military activity near Ukraine's capital of Kyiv “to increase mutual trust and create the necessary conditions for further negotiations.” Meanwhile, Ukraine proposed security guarantees from Israel, Turkey and France in exchange for NATO neutrality and a pledge not to host foreign military or their bases. The news of the talks is quickly shifting the dynamic of the war, which some observers believe Ukraine is winning. Even the expectation that the war may be coming to an end or approaching peace could move markets, oil prices and create momentum for both sides to come to terms. The Washington Post has the latest.


Numbers.

  • 4.4 million. The number of Americans who quit or changed jobs in February.
  • 11.3 million. The number of job openings in the U.S., according to the Bureau of Labor Statistics.
  • 40%. The percentage of Americans who said they approve of the Supreme Court in a September 2021 Gallup poll.
  • 53%. The percentage of Americans who said they disapprove.
  • -15%. The decline in the percentage of Americans who have a favorable view of the Supreme Court over the last three years, according to Pew.
  • 84%. The percentage of Americans who say justices should not bring their own political views into rulings.

Have a nice day.

In Marquette, Michigan, city officials have decided to close a portion of a road every night to protect migrating salamanders. The city put barricades in place after a former Northern Michigan student noticed vehicles were killing hundreds of migrating salamanders who were traveling from the interior of a local park to their breeding grounds. A special projects coordinator said, “Protecting the blue-spotted salamanders’ migration is vital, as they are an indicator species, informing us about the health of our environment." The Mining Journal has the story.


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