Supreme Court justices could be forced off Trump case: Congressman

Maryland Representative Jamie Raskin said that U.S. Supreme Court justices could be removed from former President Donald Trump‘s presidential immunity ruling by petition of the Justice Department.

Raskin’s theory, written in an op-ed published by The New York Times on Wednesday, follows the recent controversy involving Justice Samuel Alito, who was caught flying two flags outside of his residences that are associated with the “Stop the Steal” movement and the riots at the U.S. Capitol on January 6, 2021.

In response, several critics have called for Alito, a conservative, to remove himself from the high court’s ruling on Trump’s immunity case, who is seeking protection from federal charges related to his actions in the aftermath of the 2020 election through presidential immunity, as well as any cases related to January 6 that comes before the court.

Conservative Justice Clarence Thomas has also faced calls to recuse himself from such rulings due to his wife’s actions related to the January 6 attack. Both Alito and Thomas have also accepted lavish gifts from GOP donors in the past, a revelation that led to the Supreme Court’s adoption of its first code of ethics last fall, which prohibits justices from making political statements on issues that may come before them.

Raskin wrote on Wednesday that it would “be nice” if Alito and Thomas decided to recuse themselves from Trump’s case in light of the controversy, but that “begging them to do the right thing misses a far more effective course of action.”

The Democratic lawmaker was, before a life in politics, a professor of constitutional law at American University’s Washington College of Law. He said that action could instead be taken by prosecutors at the Department of Justice, who are “involved in different ways in the criminal prosecutions” of both Trump’s criminal indictment and the prosecution of individuals charged with participating in the January 6 attacks.

According to Raskin, the Justice Department “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.”

“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.

The Due Process Clause, found in both the Fifth and 14th Amendments of the Constitution, states that no one shall be deprived of “deprived of life, liberty or property without due process of law.” The 14th Amendment specifically lays out that all criminal procedures must be overseen by an unbiased judge, which Raskin writes also applies to the Supreme Court.

The federal statute referred to by Raskin, 28 U.S.C. Section 455, states that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Raskin said that the statue, “if triggered, is not a friendly suggestion. 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,” the lawmaker 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.”

Newsweek reached out to the Supreme Court press information office via email Wednesday evening for comment on Raskin’s op-ed.

Legal experts have previously cast doubt that the controversy surrounding Alito is enough for the justice to recuse himself from Trump’s immunity case. Former federal prosecutor Neama Rahmani told Newsweek last week that while reports regarding the contentious flags outside Alito’s home were “another black eye for the Supreme Court,” “practically speaking there is nothing that can be done.”

Alito responded to calls to recuse himself in a letter to Democratic Senators on Wednesday, saying that a “reasonable person who is not motivated by political or ideological considerations” would not view reports regarding the flags spotted outside of his homes as something that “meet the applicable standard for recusal.”

“As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside-down flag until it was called to my attention,” Alito wrote in the letter, which was addressed to Senators Dick Durbin and Sheldon Whitehouse. The Senators had sent a letter to Chief Justice John Roberts last week requesting that he remove Alito from Trump’s case and any others involving January 6.

Former President Donald Trump praised Alito’s response in a post to Truth Social on Wednesday, writing that it shows “intelligence, courage and ‘guts’ to refuse stepping aside from making a decision on anything January 6th related.”

Other conservatives have also come to Alito’s defense since reports regarding the flags surfaced. After the New York Times reported of an inverted American flag outside Alito’s home in Virginia, Senate Minority Leader Mitch McConnell told reporters earlier this month that it “seems to me they’re just nonstop attacks on the Supreme Court.”

Former U.S. National Security Adviser John Bolton also adamantly defended Alito following reports of an “Appeal to Heaven” flag that was found outside the justice’s vacation home in New Jersey, telling CNN‘s Wolf Blitzer last week, that the flag was “controversial for liberals who have it in for Samuel Alito.”

“Look, it’s an American patriotic flag,” Bolton added. “I support the right of anybody to fly it. Period.”