"Absurd": Experts say Clarence Thomas "giving the finger to the court" by blocking Graham subpoena

"Even granting a brief administrative stay showed his contempt for the law," says Harvard Law Prof. Laurence Tribe

By Areeba Shah

Staff Writer

Published October 25, 2022 12:29PM (EDT)

Supreme Court Justice Clarence Thomas (Susan Walsh-Pool/Getty Images)
Supreme Court Justice Clarence Thomas (Susan Walsh-Pool/Getty Images)

Supreme Court Justice Clarence Thomas temporarily blocked an order requiring Sen. Lindsey Graham, R-S.C., to testify before an Atlanta-area special grand jury investigating efforts to subvert the 2020 presidential election in Georgia.

Thomas, who has jurisdiction over the lower court that issued the original ruling, paused the order for Graham to testify in a brief Supreme Court docket entry.

"Upon consideration of the application of counsel for the applicant, it is ordered that the August 15, 2022 order of the United States District Court for the Northern District of Georgia... is hereby stayed pending further order of Justice Thomas or of the Court," the brief order states.

Thomas' move is an administrative stay to give the Supreme Court justices more time to review the appeal further.

Fulton County District Attorney Fani Willis, who is leading the Georgia investigation, subpoenaed Graham over two phone calls he made to Georgia Secretary of State Brad Raffensperger and his staff after the 2020 election.

The South Carolina senator is arguing that the Constitution's "speech or debate" clause protects him from having to testify since the clause shields legislators from facing questions about their "speech or debate." 

But the 11th US Circuit Court of Appeals ruled that Georgia prosecutors could question Graham about the phone calls and "communications and coordination with the Trump campaign regarding its post-election efforts in Georgia, public statements regarding the 2020 election, and efforts to 'cajole' or 'exhort' Georgia election officials." 

Graham's refusal to testify and claim protection under the Speech and Debate Clause drew criticism from legal experts. Barb McQuade, a former U.S. attorney and University of Michigan law professor, called his argument "absurd."

"There is no legal basis for Graham to refuse to even appear to testify. He can invoke objection under speech or debate clause to any particular question that intrudes on legislative activities, but this investigation is about election interference, not legislation," McQuade wrote

Others expressed frustration over Thomas' order shielding Graham from grand jury questioning. His involvement has often raised concerns about a conflict of interest since his wife, Ginni Thomas, was involved in efforts to alter the results of the election and reverse Trump's defeat.

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Glenn Kirschner, a former federal prosecutor, told MSNBC the Supreme Court is continuing to dig itself "deeper and deeper into the hole of illegitimacy."

"The word 'recusal' doesn't seem to be in Clarence Thomas' lexicon. He's wading into the same territory in which he has a conflict. He's the one who voted to withhold his own wife's deeply damaging and potentially incriminating text messages," Kirschner said.

Harvard Law Professor Laurence Tribe shared similar concerns and argued that Thomas violated a federal law that requires "any 'justice' to recuse when his or her 'impartiality might reasonably be questioned' or his or her 'spouse is known by the justice to have an interest that could be substantially affected by the outcome.'"

Tribe added that "Thomas is giving the finger to the Court on which he sits, the Chief Justice and Associate Justices with whom he serves, the Constitution he interprets and the Nation that pays his salary."

Calling his actions "unlawful", Tribe tweeted that Thomas should have recused and passed the baton to another justice. "Even granting a brief 'administrative stay' showed his contempt for the law he is sworn to uphold. Period."

Anthony Michael Kreis, a law professor at Georgia State University College, wrote that "the optics for the Court are less than ideal."

Citizens for Responsibility and Ethics in Washington, a D.C.-based government watchdog group, is urging Congress to open investigations into Ginni Thomas for her attempts to overthrow the 2020 election and her involvement in the attack on the Capitol and Clarence Thomas for his failure to recuse from related cases.

"It is critical that those responsible for the attack on the Capitol be held accountable and that the integrity of the Supreme Court not be tainted by conflicts of interest," CREW President Noah Bookbinder said. "The Judiciary Committees have responsibility for the oversight of our judiciary and law enforcement agencies, and investigating Ginni Thomas's conduct and Justice Thomas's failure to recuse is an essential exercise of that oversight responsibility."

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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