Raskin’s Recusal Analysis Is All Wrong

Charlie dismantled the separation-of-powers problems with Jamie Raskin’s one-weird-trick theory of using the Justice Department to pressure Justices Clarence Thomas and Samuel Alito into recusing from two January 6–related cases this term, Trump v. United States (which addresses Donald Trump’s claim for presidential immunity) and Fischer v. United States (which addresses the scope of a statute used against Trump and a number of other Capitol riot defendants). Let me add a few words on why Raskin is so off base on recusal itself. I’ve written before at great length on the recusal standards and will refer back to the same rules here.

First, Raskin repeatedly confuses the recusal of lower-court judges with the recusal of Supreme Court justices. The long-standing rule is that lower-court judges, at least until they’ve invested significant time into a case, are interchangeable, so there’s a stronger case for them recusing. (Trial judges also have a lot more individual discretion and power over what happens in a case than members of a nine-judge appellate panel). By contrast, because the Supreme Court must sit short-handed if anyone recuses — potentially resulting in a 4–4 tie — there’s a long-recognized “duty to sit” unless recusal is necessary. So, every single time in his op-ed that Raskin quotes or cites a judicial precedent or invokes a principle such as “doubts ordinarily ought to be resolved in favor of recusal,” he’s quoting a case where appellate courts or the Supreme Court are talking about a court below them — not about their own colleagues and not about a Supreme Court justice. He’s just applying the wrong body of rules.

Second, Raskin fumfers about “the appearance of justice” and invokes a “groundswell of appeals beseeching” Thomas and Alito to recuse — a groundswell manufactured by a partisan propaganda campaign and consisting of partisans. But that’s not how the recusal rules work. If a judge appears to be biased to someone who has their facts wrong, that’s not an appearance of bias, it’s a mistake. Only actual conflicts require recusal under the rules.

Third, Raskin invokes 28 U.S.C § 455, which says in subpart (a) that “any justice . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” and offers, in subpart (b), one example of a conflict: when the justice’s wife “has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding,” or

• Is a party to the proceeding, or an officer, director, or trustee of a party;

• Is acting as a lawyer in the proceeding;

• Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

• Is to the judge’s knowledge likely to be a material witness in the proceeding.

Raskin argues:

Ms. Thomas and Mrs. Alito (who, according to Justice Alito, is the one who put up the inverted flag outside their home) meet this standard. A judge must recuse him- or herself when a spouse “is known by the judge to have an interest in a case that could be substantially affected by the outcome of the proceeding.”

That’s not how any of this works. An interest is different from an opinion. The central idea is to capture situations where a justice’s wife has money riding on the case, or is otherwise a party or witness to the case. How on earth does Raskin think Mrs. Alito has any concrete interest at stake in the Trump and Fischer cases? She certainly is not personally affected by whether presidents can claim immunity from prosecution. She did nothing to obstruct an official proceeding. She’s not a witness to anything. Does Raskin think she could be criminally prosecuted for flying a flag the wrong way? If he does, he has no business making laws for Americans.

My prior column ran through the theories of how Ginni Thomas might have an interest, and they’re not much better; the only situation I can think of where she might have an interest is if the Court was deciding a question directly bearing on her being called as a witness, which is at least theoretically possible (if practically unlikely) in one of the prosecutions of Mark Meadows. But neither Fischer nor Trump involves a case against Meadows, who is a co-defendant with Trump only in Georgia; Meadows can’t claim presidential immunity, and he hasn’t been charged under the statute involved in Fischer. In any event, the recusal rules don’t reach so far afield as the extended chain of maybes that would be needed to connect a prosecution of Trump to witnesses for or against Meadows — after all, the rule speaks of who the judge knows to be likely to be a material witness. If Thomas was a trial judge hearing a Meadows-related case, he might consider recusing rather than investing his time in a case with even an outside chance that his wife might be a witness, but appeals courts don’t work that way; they hear discrete legal questions. None of which has the slightest thing to do with either Mrs. Thomas or Mrs. Alito.