Supreme Court Justices Samuel Alito

U.S. Supreme Court Associate Justice Samuel Alito testifies during a U.S. House hearing on March 7, 2019 in Washington, D.C.

(Photo by Chip Somodevilla/Getty Images)

'Ethical Nightmare': House Democrats Demand Alito Recuse From Trump Cases

"The fact of such a political statement at your home creates, at minimum, the appearance of improper political bias."

Citing recent reporting that an inverted American flag—an alleged symbol of the "Stop the Steal" election denialism stoked by former U.S. President Donald Trump—was flown at the home of Supreme Court Justice Samuel Alito following January 6, 2021, 45 House Democrats on Tuesday demanded his recusal from all cases involving the right-wing insurrection or 2020 presidential contest.

Earlier this month, The New York Timesrevealed that the inverted flag flew in front of Alito's home in Alexandria, Virginia during the period between the January 6 attack on the U.S. Capitol by Trump supporters and the inauguration of President Joe Biden.

"It is incontrovertible that at the time the upside-down flag flew from your front lawn, 'Stop the Steal' activists had adopted the inverted flag as their symbol of protest. Their belief that widespread election fraud had thrown the election from former President Trump to then-President-Elect Biden has never been supported by any evidence," a letter signed by the Democrats states.

The lawmakers cite a section of the U.S. Flag Code—which is legally unenforceable—barring the display of inverted American flags "except as a signal of dire distress in instance of extreme danger to life or property."

"No such dire distress was in existence at the time the inverted flag flew from your front yard," the letter notes. "Indeed, your own public statement attempts to pass responsibility to your wife, but you nonetheless acknowledge that it was a political statement in support of Donald Trump's effort to overturn the 2020 election."

Alito told the Times he "had no involvement whatsoever in the flying of the flag," which he said "was briefly placed by Mrs. Alito in response to a neighbor's use of objectionable and personally insulting language on yard signs."

The lawmakers' letter continues:

Even if you had "no involvement" in the display yourself, the fact of such a political statement at your home creates, at minimum, the appearance of improper political bias. According to Canon 5 of the recently promulgated, non-binding, non-enforceable U.S. Supreme Court ethics guidelines, on which you are listed as a signatory, a justice "should refrain from political activity." In fact, the court's own employee guidelines explicitly prohibit public displays of political views—including yard signs and bumper stickers—because they create an appearance of a conflict of interest...
In Canon 3B, the guidelines declare that "a justice should disqualify himself or herself in a proceeding in which the justice's impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the justice could fairly discharge his or her duties."

There are currently two cases related to January 6 and the 2020 election before the court. Trump v. United Statesconcerns the presumptive 2024 GOP nominee's claim he has absolute presidential immunity for any official acts—in this case, trying to subvert the 2020 election—while Fischer v. United States is about whether January 6 insurrections committed felony obstruction of an official proceeding.

"Sadly, you are now the second justice who has demonstrated at least an appearance of a conflict of interest related to the events surrounding the January 6 insurrection," the letter laments. "In the aftermath of the 2020 election, text messages revealed that Virginia 'Ginni' Thomas, the wife of Justice Clarence Thomas, was actively strategizing with the White House chief of staff about how to overturn the election results and attending the January 6 'Stop the Steal' rally—precisely the same underlying conduct charged in Trump and Fischer."

"Although Justice Thomas seemingly acknowledged this conflict of interest by recusing himself from the court's case related to Trump attorney John Eastman, he has shockingly refused to recuse himself from Trump and Fischer," the lawmakers noted.

"Undoubtedly, public trust and confidence in the Supreme Court is in shambles, which jeopardizes our democracy and the rule of law upon which it is based. And given that your decisions in Trump and Fischer will profoundly affect the future of a past and potentially future president, and of democracy itself, it is essential that the court attempt to bolster the public's trust in the integrity of the court," the letter to Alito states.

"In order to protect the legitimacy of the court's ultimate decision in these historic cases," it concludes, "it is clear that both you and Justice Thomas must recuse yourselves from participating any further in these, or any other cases, related to January 6 or the 2020 election."

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