Senate Judiciary chair says Justice Clarence Thomas should recuse himself from Jan. 6 cases

He said the committee will discuss possible action after Judge Jackson's vote.

March 28, 2022, 6:04 PM

The top Democrat on the Senate Judiciary Committee, Chairman Dick Durbin, is calling on Justice Clarence Thomas to recuse himself from Jan. 6-related cases following reports that Thomas' wife, Ginni Thomas, had exchanged texts with then-White House Chief of Staff Mark Meadows, urging him to attempt to overthrow the 2020 election results.

Durbin said Monday that the development "raises a serious question about conflict of interest for Justice Thomas."

"To think that he would consider a case where his wife is frequently contacting the chief of staff for the president and giving advice on matters that are going to be ultimately litigated by the court," he told reporters on Capitol Hill. "For the good of the court, I think he should recuse himself from those cases."

PHOTO: Senate Judiciary Committee chairman Sen. Dick Durbin listens during a committee business meeting on Capitol Hill in Washington, D.C., on March 28, 2022.
Senate Judiciary Committee chairman Sen. Dick Durbin listens during a committee business meeting on Capitol Hill in Washington, D.C., on March 28, 2022.
Susan Walsh/AP

Sources familiar with the text messages, which were obtained by the House select committee investigating the Jan. 6 Capitol attack, confirmed their authenticity to ABC News. The content of the messages was first reported by The Washington Post and CBS News.

"Help This Great President stand firm, Mark!!!" Thomas wrote to Meadows on Nov. 10 after the election was officially called for Joe Biden. "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."

"Evil always looks like the victor until the King of Kings triumphs," Meadows wrote. "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."

The Supreme Court then declined to block the Jan. 6 committee from obtaining Trump White House records in January over the objection of only one justice: Clarence Thomas.

PHOTO: In this April 23, 2021, file photo, Associate Justice Clarence Thomas poses during a group photo of the Justices at the Supreme Court in Washington, D.C.
In this April 23, 2021, file photo, Associate Justice Clarence Thomas poses during a group photo of the Justices at the Supreme Court in Washington, D.C.
Erin Schaff, Pool via Reuters, FILE

Pressed as to whether the Senate Judiciary intends to take action on or investigate the matter, Durbin said the committee would have those discussions once they deal with the pending nomination of Judge Ketanji Brown Jackson to serve on the Supreme Court.

"There's plenty of time and plenty of reason for us to debate this in the future," Durbin said. "But for the time being. I want to make sure this vacancy is filled with Judge Jackson."

Durbin added there are "a lot of things for which we will discuss" after Jackson's confirmation vote, but that he is "troubled to say the least by the disclosures about what Justice Thomas's wife has been doing."

President Biden, meanwhile, is attempting to stay out of the debate over whether Thomas should recuse himself, saying Monday at a White House event unveiling his budget that he would "leave that to two entities."

“One, the January 6th committee and two the Justice Department. That's their judgment, not mine to make," Biden said.

PHOTO: President Joe Biden speaks about Russian President Vladimir Putin and Russia's invasion of Ukraine after unveiling his proposed budget for fiscal year 2023 in the State Dining Room of the White House, on March 28, 2022, in Washington, D.C.
President Joe Biden speaks about Russian President Vladimir Putin and Russia's invasion of Ukraine after unveiling his proposed budget for fiscal year 2023 in the State Dining Room of the White House, on March 28, 2022, in Washington, D.C.
Patrick Semansky/AP

The House select committee investigating the Capitol attack is also debating whether or not to ask Ginni Thomas for her voluntary cooperation and is meeting on Monday evening to discuss whether to hold former Trump aides Peter Navarro and Dan Scavino in contempt of Congress for their refusal to comply with subpoenas.

Sources say there are others on the panel who believe the committee should take the more aggressive step of attempting to compel her testimony via subpoena.

Pressed further on Monday to take his own position, the president was unwavering.

“I told you those things get into legal issues. That, in fact, I told you I would not tell the Justice Department what position to take or not take. And I'm not going to instruct the Congress either," he said to reporters.

The messages -- more than two dozen between Thomas and Meadows in November of 2020, and one from Jan. 10 -- were among the thousands of pages of text messages, emails and documents Meadows voluntarily turned over to the committee last year, before he reversed course and decided not to cooperate with the inquiry.

PHOTO: Associate Supreme Court Justice Clarence Thomas sits with his wife and Virginia Thomas while he waits to speak at the Heritage Foundation, Oct. 21, 2021, in Washington, D.C.
Associate Supreme Court Justice Clarence Thomas sits with his wife and Virginia Thomas while he waits to speak at the Heritage Foundation, Oct. 21, 2021, in Washington, D.C.
Drew Angerer/Getty Images, FILE

Thomas did not respond to an earlier request for comment from ABC News. A spokesman for the committee declined to comment on the messages or their contents.

"There were some eyebrows raised when Justice Thomas was that lone vote," said Kate Shaw, ABC News Supreme Court analyst and Cardozo Law professor. "But he did not explain himself, so we don't actually know why he wished to take up the case."

There are no explicit ethics guidelines that govern the activities of a justice's spouse, experts say, but there are rules about justices avoiding conflicts of interest. Federal law requires that federal judges recuse themselves from cases whenever their "impartiality might reasonably be questioned."

ABC News' Katherine Faulders, Benjamin Siegel, Devin Dwyer, Justin Gomez and Libby Cathey contributed to this report.

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