Clarence Thomas caricature by DonkeyHotey, adapted from a Wikimedia photo.
Clarence, Ginni and a looming US constitutional crisis
by Seth Abramson – @SethAbramson
With a federal judge now finding that Trump likely committed federal felonies related to January 6, America is now on a collision course with a constitutional crisis. This isn’t hype – it’s legal fact.
This is the news that set America on a path to crisis. It arose in the context of congressional attempts to secure emails from one of Trump’s pre-1/6 lawyers, John Eastman.
Eastman has asserted his Fifth Amendment privilege against self-incrimination.
Eastman, with Trump adviser Peter Navarro – who’ll be referred to DOJ by Congress for criminal prosecution sometime this week or next – was one of the authors of the January 6 coup plot. But there were others – and their identities are what have now launched a constitutional crisis.
Given that Eastman is claiming the emails the judge ordered turned over to Congress are privileged attorney-client work-product, and given that – *after reviewing them* – the judge says they likely establish that Eastman *and Trump* committed crimes, this ruling will be appealed.
As much as any case that’s ever come under federal jurisdiction, the Supreme Court of the United States will want to weigh in on whether the legislative branch of our government can get supposedly privileged emails involving the head of the executive branch of our government.
John Eastman is not just a former clerk of current Supreme Court Justice Clarence Thomas, he has been a good friend of Justice Thomas and his wife (far-right activist Ginni Thomas) for decades. But the Eastman-Thomas connections relevant here go well beyond this – *well* beyond.
As I discussed at length, with full sourcing, in this article, Ginni Thomas appears to have been both (a) instrumental in the formation of Trump’s legal team, *and* (b) instrumental in forming its plot.
In the latter half of Trump’s presidency, Ginni Thomas became a top Trump adviser, with the *particular* task of helping Trump staff his operations with loyalists. When Trump’s legal team began to coalesce in mid-2020, it began with one of Thomas’s best friends and associates.
Cleta Mitchell, the Ginni Thomas friend and associate who helped launch Trump’s pre-election legal team in expectation of post-election legal challenges, would end up on the infamous call between Trump and Georgia SoS Brad Raffensperger that’s now under criminal investigation.
It was through Mitchell – and apparently Thomas – that Eastman was recruited to assist Trump in a course of legal representation that a federal judge now says was likely criminal on both Eastman’s part *and* Trump’s. Ginni Thomas had a *particular* reason to want Eastman involved.
Ginni Thomas was, during Trump’s presidency, in regular indirect and direct contact with John Eastman through Thomas Clerk World, a private listserv that is *exclusively* used by former Thomas judicial clerks and (for reasons that are unclear) far-right activist Ginni Thomas.
Even Clarence Thomas doesn’t use Thomas Clerk World – though his wife aggressively does – presumably because the discussions there sometimes include debates over issues that will come before SCOTUS, as happened *repeatedly* in the fall of 2020 and immediately after the election.
Ginni Thomas and Eastman both acknowledge that debates over Trump’s legal strategy occurred on the listserv, and they both participated in such debates. We know that as this was ongoing, Ginni Thomas was a) preaching insurrection and b) in contact with Trump’s chief of staff.
Ginni Thomas has long had a close relationship with Trump chief of staff Mark Meadows – even using one of the orgs she leads to give him a very public award – just as she’s had a close relationship with Eastman.
Both Eastman and Meadows are now hiding their emails from Congress.
Before Eastman or Navarro had set to writing their coup plot, the *exact contours* of what they’d later reduce to writing were outlined by a secretive far-right organization Ginni Thomas helps lead. We now know that there were secret Thomas-Meadows exchanges during this time.
We also know Ginni Thomas and Eastman engaged one another on a private board, and – given their decades-long friendship and the fact that Eastman’s plot mirrored one Thomas’ group (with which Eastman is affiliated) outlined, there’s every reason to expect Thomas-Eastman emails.
We don’t know what Eastman is hiding in his 1,000+ emails, only that – per a federal judge – it *is* some sort of conspiracy. While it’s likely emails by Ginni Thomas are among the 1,000+, the simple fact that she orchestrated Trump’s legal team and strategy makes her a witness.
We have a strong sense of the vehemence of Ginni Thomas’ desire to be involved in the planning of January 6 from the *avalanche* of texts we know she sent Trump’s chief of staff *advocating the overthrow of American democracy* by any means necessary – even jailing journalists.
Justice Thomas has never recused himself from a SCOTUS case over his wife’s far-right activism – including being the sole dissenter *in a case over 1/6 emails* that might’ve included ones written by his wife (he couldn’t know either way, unless he discussed the case with her).
But now – as Eastman prepares to appeal a federal court order requiring him to turn over emails we *know* (a) incriminate the former President of the United States and (b) could include proof of Ginni Thomas’ involvement in that criminal conspiracy – matters are even more dire.
The Eastman case presents weighty constitutional questions – in the view of conservatives, at least, if not most legal analysts (who see it as a simple “crime-fraud exception” to attorney-client privilege) – and right now the anticipated SCOTUS vote on such a case would be 5-4.
Likely to protect Trump because of partisanship or a benighted view of the executive branch – falling under the “theory of the unitary executive” (Google it) – are Justices Thomas, Alito, Kavanaugh, Barrett and Gorsuch. In this matter, Roberts would likely side with progressives.
Of course, as we’ve seen, Clarence Thomas cannot possibly sit on a case in which his wife’s correspondence – and possibly criminal complicity in a seditious conspiracy – is at issue, both for the obvious reasons *and* because Ginni may have discussed her actions with her husband.
The problem is that the sole arbiter of whether Clarence Thomas will recuse himself from a case is…
Short of impeaching/removing a SCOTUS Justice for the first time in our history, Congress can’t stop Thomas from sitting on a case involving his family.
Were Thomas to recuse himself, the very possible result would be a 4-4 SCOTUS decision on Eastman’s emails, which would *uphold* whatever the court immediately below’s ruling was (that would be the court directly *above* the federal district court that made the ruling today).
Mind you, this crisis applies to *any case arising from today’s news*. What I mean by this is that even if for some reason Eastman doesn’t appeal, there’ll still be the issue of *Meadows’* emails. Or a refusal by Ginni Thomas to turn over her emails in response to a subpoena.
It’s likewise a crisis if *Cleta Mitchell* won’t turn over emails, or another person Ginni Thomas worked closely with on the January 6 plot, Barbara Ledeen – a GOP Senate staffer – won’t. Either the Eastman case blows up everything by involving the Thomases, or the next one does.
We already have members of Congress calling for Thomas to recuse himself – and candidly we might even expect (behind the scenes) the unprecedented step of the Chief Justice of the Supreme Court speaking to Thomas, which apparently hasn’t happened before.
But no one can make Thomas recuse – and given that he’s an ideologue who’s said he shares his wife’s values and beliefs, there’s no reason to believe he will.
So what else could possibly happen, but that those calling for Thomas’ recusal will eventually demand his impeachment?
Seth Abramson is an attorney, journalist and University of New Hampshire professor who has written best-selling books about corruption in the Donald Trump administration and in Trump’s 2016 campaign. He has worked as a legal analyst on CNN and written for The Washington Post, Dallas Morning News, The Seattle Times, Newsweek, Indiewire, and The Guardian.
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