Trump speaks with Justice Alito amid push to halt criminal sentencing
Alito spoke to Trump to recommend an ex-clerk for a job in his administration.
Supreme Court Justice Samuel Alito spoke to President-elect Donald Trump by phone Tuesday to recommend one of his former law clerks for a job in the new administration, ABC News has learned.
"William Levi, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position," Justice Alito confirmed to ABC News Wednesday. "I agreed to discuss this matter with President-elect Trump, and he called me yesterday afternoon."
The call occurred just hours before Trump's lawyers on Wednesday morning filed an emergency request with the justices asking them to block a New York judge from moving forward with sentencing Trump on Friday in his criminal hush money case.
Alito said that he and Trump did not discuss that matter.
"We did not discuss the emergency application he filed today, and indeed, I was not even aware at the time of our conversation that such an application would be filed," Alito said. "We also did not discuss any other matter that is pending or might in the future come before the Supreme Court or any past Supreme Court decisions involving the President-elect."
It is not unusual for a sitting justice to offer a job recommendation for a former clerk, but it is rare, court analysts said, for a justice to have such a conversation directly with a sitting president or president-elect, especially one with an active stake in business pending before the court.
Late last month, Trump waded into a momentous case over the future of the video-sharing app TikTok, asking the justices to delay an impending ban on the extraordinary grounds that he "alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government."
On Wednesday, Trump asked the justices to immediately halt all criminal proceedings against him in New York, including Friday's sentencing, warning that failing to do so during a presidential transition would "damage" the presidency and disrupt "national security and America's vital interests."
The Supreme Court has asked for a response from prosecutors in New York by Thursday at 10 a.m. ET. It's expected to weigh in on Trump's request by Friday morning.
Levi is being considered for various legal jobs in the incoming administration, including general counsel of the Department of Defense, sources said. Levi, who clerked for Justice Alito from 2011-2012, served in the first Trump administration as chief of staff to then-Attorney General Bill Barr.
"The justices of the Supreme Court are, among other things, employers to their law clerks," said ABC News contributor Kate Shaw, who clerked for former Supreme Court Justice John Paul Stevens. "So providing a reference for a former employee is not atypical, whatever job a former clerk may be applying for -- an academic job, private sector job, or even a government job."
But Shaw said such a call between a justice and a president-elect is highly unusual, especially when the president-elect is engaged in multiple legal actions with the potential to go before the Supreme Court.
A spokesperson for Trump's transition team did not immediately respond to a request for comment from ABC News.
Alito has previously faced calls to recuse himself from cases related to the Jan. 6 Capitol attack and the 2020 election. Last year he rejected Democrats' calls for his recusal from those cases after flags flown at his personal residences sparked controversy. Chief Justice John Roberts subsequently declined an invitation by Democrats on the Senate Judiciary Committee for a meeting to discuss the court's ethical practices in light of the flags controversy involving Alito.
Sen. Dick Durbin (D-IL) and Sen. Sheldon Whitehouse (D-RI), in a May 23 letter requesting Alito's recusal over the displays, wrote that Alito "actively engaged in political activity, failed to avoid the appearance of impropriety, and failed to act in a manner that promotes public confidence in the impartiality of the judiciary."
"He also created reasonable doubt about his impartiality and his ability to fairly discharge his duties in cases related to the 2020 presidential election and January 6th attack on the Capitol," the two wrote.
Trump is due to be sentenced Friday after he was found guilty in May on 34 felony counts of falsifying business records related to a hush money payment made to adult film actress Stormy Daniels in order to boost his electoral prospects in the 2016 presidential election.
The president-elect has asked the Supreme Court to consider whether he is entitled to a stay of the proceedings during his appeal; whether presidential immunity prevents the use of evidence related to official acts; and whether a president-elect is entitled to the same immunity as a sitting president.
Trump faces up to four years in prison, but New York Judge Juan Merchan has signaled that he plans to sentence Trump to an unconditional discharge -- effectively a blemish on Trump's record, without prison, fines or probation -- in order to respect Trump's transition efforts and the principle of presidential immunity.
Defense lawyers argued that sentencing still "raises the specter of other possible restrictions on liberty."