Supreme Problem?

Leaked Emails Show Justice Clarence Thomas’s Wife Pushing Travel Ban

In leaked emails, Ginni Thomas asked for advice on how to organize in favor of Trump’s travel ban. But by doing so, she may have inadvertently made it harder for the executive order to survive the Supreme Court.

02.16.17 6:15 AM ET

Justice Clarence Thomas’s wife is organizing in support of President Donald Trump’s agenda. And it might make her husband’s life a little complicated.

In an email sent to a conservative listserv on Feb. 13 and obtained by The Daily Beast, Ginni Thomas asked an interesting question: How could she organize activists to push for Trump’s policies?

“What is the best way to, with minimal costs, set up a daily text capacity for a ground up-grassroots army for pro-Trump daily action items to push back against the left’s resistance efforts who are trying to make America ungovernable?” she wrote.

“I see the left has Daily Action @YourDailyAction and their Facebook likes are up to 61K,” she continued.

She then linked to a Washington Post story about the group.

“But there are some grassroots activists, who seem beyond the Republican party or the conservative movement, who wish to join the fray on social media for Trump and link shields and build momentum,” she wrote. “I met with a house load of them yesterday and we want a daily textable tool to start… Suggestions?”

Neither Ginni nor Clarence Thomas returned requests for comment. The group she referred to, Daily Action, encourages people who oppose Trump’s agenda to make a phone call every day on relevant issues—including the travel ban. Thomas, on the other hand, has characterized former acting Attorney General Sally Yates as part of a “subversive alt-government” trying to undermine the president and make America “ungovernable” in a recent Daily Caller article. Yates drew ire from the right when she refused to have DOJ lawyers defend the president’s travel ban.

And that travel ban could end up before the Supreme Court. Last week, the 9th Circuit Court of Appeals in San Francisco ruled against Trump’s travel ban. And a federal judge in Virginia on Monday issued a preliminary injunction against the ban, blocking its enforcement in the Commonwealth.

It isn’t clear yet if the Justice Department lawyers defending Trump’s ban will appeal the 9th Circuit ruling to the Supreme Court. But if that happens, then Thomas’s activism could be an issue, according to legal experts.

Heidi Li Feldman, a professor at Georgetown Law School and expert on legal ethics, told The Daily Beast that the email could be grounds for lawyers challenging Trump’s travel ban to ask Justice Thomas to recuse himself from the case—a move that could doom the executive order.

“You can imagine circumstances easily where such conduct on the part of the spouse of a Supreme Court justice would lead to a non-frivolous disqualification motion,” she said.

Feldman added that just being politically active wouldn’t be enough—after all justices’ spouses aren’t barred from engaging in electoral politics, and Thomas’s activism has drawn scrutiny before. The difference here, Feldman said, was Thomas’s apparent support for specific activism on specific issues that could come before the court.

“It’s pretty egregious,” Feldman said. “It’s pretty clear that it’s quite partisan and in context, given the date of the email and that the tool is meant to rebut activity on the left—what has the left been really active on? The executive orders. So minimally, I would say the author of the email is thinking of that executive action.

“It’s so specific, it’s so narrowly tailored,” she said.

“I was taken aback,” she added.

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Supreme Court justices don’t have outside oversight on their decisions regarding whether or not to recuse themselves from cases. So if Thomas decides he’s impartial, that’s it.

It wouldn’t be the first time Thomas recused himself from a case involving issues related to his family. In 1996, Thomas recused himself from United States v. Virginia. The case that involved enrollment at the Virginia Military Institute, and his son was attending there at the time. More recently, though, Thomas declined to recuse himself from a Supreme Court case on the Affordable Care Act, which his wife vocally opposed.

And some legal experts who spoke with The Daily Beast said Thomas wouldn’t necessarily have to recuse himself from cases involving the travel ban.

“It’s an important principle: Just because you’re married to somebody doesn’t mean you share all their views,” said Charles Wolfram, a legal ethics expert and emeritus law professor at Cornell.

“As a matter of common sense, it seems to me it’s just silly for her to be emailing in this fashion,” he added.

And Norm Eisen, a Brookings Institution scholar who formerly helped the Obama administration’s ethics initiatives, said that the email sounds related to the travel ban.

“Given the timing of this email, the liberal example that Mrs. Thomas’s email cites, and the nature of the matters that are in the news, one must read this email as effectively asking, ‘What is the best way to set up a daily text capacity for ground-up grassroots army for pro-Trump daily action including to defend the muslim ban executive order cases?’” he said. “It’s reasonable to read the email that way. So there you have her talking about doing meetings and doing activism relating to an issue that is quite likely to be before the court.

“Even if it’s unlikely to trigger a recusal under the standards that the Supreme Court has previously applied, I do think it raises an eyebrow,” he added.