Ginni Thomas texts about overturning 2020 vote: Three questions

The Explainer

In the tense weeks following the 2020 presidential election, longtime conservative activist Virginia Thomas, who goes by Ginni and is the wife of Supreme Court Justice Clarence Thomas, peppered White House chief of staff Mark Meadows with messages urging him to keep fighting to overturn Joe Biden’s victory.

Some of the messages, first reported by The Washington Post and CBS News, referenced fringe conspiracy theories and false charges of fraud as Ms. Thomas railed at what she called “the greatest Heist of our History.”

In one message to Mr. Meadows shortly after the vote, Ms. Thomas quoted language then circulating on far-right websites that the “Biden crime family” and “ballot fraud co-conspirators,” including “fake stream media reporters,” were already being arrested and would be kept on barges off the military prison at Guantánamo Bay to face military tribunals for sedition.

“I hope this is true,” Ms. Thomas told the White House chief of staff.

In another message, Ms. Thomas referred to a false belief of QAnon conspiracists that President Donald Trump had watermarked mail-in ballots to track and expose voter fraud.

“Watermarked ballots ... have been part of a huge Trump & military white hat sting operation in 12 key battleground states,” she wrote.

None of the messages directly referred to her husband. But some legal experts say they raise questions of whether Justice Thomas should recuse himself from any cases dealing with the 2020 election or its aftermath.

Three questions about these communications:

Where did they come from?

The 29 texts obtained by Bob Woodward of the Post and Robert Costa of CBS News are a fraction of the 2,320 messages provided by Mr. Meadows to the House committee investigating the Jan. 6 attack on the Capitol.

Twenty-one of them were sent by Ms. Thomas to the White House chief of staff, and eight were his replies. They were written between Nov. 4 and 24, with the exception of one sent on Jan. 10, following the insurrection by Trump protesters at the Capitol. 

The final missive expressed anger at Vice President Mike Pence for refusing Mr. Trump’s request to block congressional certification of Mr. Biden’s victory. (Mr. Pence – and many legal experts – believed he had no constitutional authority to take such an action.)

“We are living through what feels like the end of America,” Ms. Thomas wrote. “Most of us are disgusted with the VP and are in listening mode to see where to fight with our teams.”

Mr. Meadows is no longer cooperating with the committee, and has filed suit to determine the validity of assertions of executive privilege to block further access to his Jan. 6 records. 

Do they matter?

Democrats say the Thomas pipeline reveals her easy access to the highest levels of the American government at a time when Mr. Trump and his allies were hoping to get the election outcome overturned by Supreme Court justices, including her husband.

They also reveal that Ms. Thomas, a longtime, vocal, right-wing presence in Washington, had fully embraced Mr. Trump’s election falsehoods, to the point of repeating fantastical conspiracy theories. She repeatedly urged the White House to embrace Sidney Powell, the lawyer whose so-called Kraken suits alleging voter fraud were all turned back by the courts, and who has been formally sanctioned by a Michigan federal judge for “abuse of the judicial process” by filing baseless lawsuits.

“Sidney Powell & improved coordination now will help the cavalry come and Fraud exposed and America saved,” wrote Ms. Thomas on Nov. 13, in a text she said had also been shared with “Jared,” presumably Jared Kushner, Mr. Trump’s son-in-law.

No solid evidence has emerged of any widespread fraud in the 2020 election. Trump lawsuits alleging the contrary were dismissed at state and federal levels. Officials of both parties from across the nation attested the vote was free and fair, and Trump Attorney General William Barr found no evidence of widespread fraud.

That said, the communication between Mr. Meadows and Ms. Thomas might come as no surprise, given the documented access she and her husband have had to Washington’s conservative circles of power. And it may be notable that the communication largely ran one way, with Mr. Meadows replying only intermittently.

“Nothing about the text messages presents any legal issues,” George Terwilliger III, Mr. Meadows’ lawyer, told the Post.

Should Justice Thomas recuse himself?

Some legal analysts say the publication of the messages shows that Justice Thomas should now recuse himself from any cases that deal with the efforts of Mr. Trump and his allies to overturn election results – or with the effort of congressional investigators to understand those efforts.

There’s one such case now looming on the judicial horizon: John Eastman, a conservative law professor who drew up memos for the Trump team on possible ways to block Mr. Biden’s victory, has filed a suit arguing that attorney-client privilege shields his records from the House Jan. 6 committee. The case could well reach the Supreme Court on appeal.

Justice Thomas has already ruled in one similar case. Earlier this year he was the lone dissenting vote in an 8-1 ruling that refused a request from Mr. Trump to block the release of White House records about the Jan. 6 insurrection. 

Supreme Court justices are not bound by the judicial code of conduct, which applies to all other federal judges, and requires recusal in any situation in which a fair-minded person might doubt a judge’s impartiality.

But they are subject to a federal law that among other things requires recusal if their impartiality “might reasonably be questioned,”  noted University of Texas Law School professor Steve Vladeck on Twitter.

“The problem, of course, is the absence of an enforcement mechanism,” tweeted Professor Vladeck. That reinforces the need for the Supreme Court to be subject to a more meaningful and enforceable set of ethics rules, he said.

At a GOP retreat in Florida on Friday, House Minority Leader Kevin McCarthy said he didn’t think recusal was necessary in this case. Justice Thomas should make that call, he said.

“It’s his decision based upon law,” said Representative McCarthy.