Calls for Justice Clarence Thomas to Recuse Himself

with Trump White House chief of staff Mark Meadows. Thomas did not recuse himself from a case involving the release of former President Donald Trump's White House records to the January sixth Committee, and he was the only justice to

vote against turning the records over. Democrats like Senator Dick Durbin are calling for Thomas to recuse himself in these cases, while Republicans like Senator Josh Holley say it's not necessary to think that he would consider a case where his wife is frequently contacting the chief of staff of the president and giving advice on matters that are going to be ultimately litigated by the court. That is the ultimate conflict of interest. She's an independent person, you know, and

she's got her own political views. She's she's been doing this a long time. And if you want to take issue with her, that's fine, but she's not on the bench. She's on the bench. Joining me is ethics expert Rebecca Roythy, a professor at New York Law School. Rebecca, what are the rules for accusal that Supreme Court justices follow? There are rules that are drafted for all judges, and those rules require a judge to disqualify himself or herself whenever

that judges impartiality might reasonably be questioned. But that's a really broad rule, and in general, there are some more specifics about when judges normally recuse themselves, and the general proposition is interpreted in light of those more specific rules.

And one thing that's kind of important also is that Supreme Court justices are a little bit different than other judges in that there is no one to take their least when they recoose themselves, and so for that reason, it's generally a good idea for judges to be a little bit more conservative about exercising their discretion to recuse themselves. In particular cases, if a party thinks that a Supreme Court justice would be biased, there's no mechanism for trying

to force a recusal. Is there No party can and many times has requested recusal, but it's really at this point up to the discretion of that individual justice whether or not to do so. Part of that is because of the separation of powers, you can't really have let's say, congressional rule because that might be unconstitutional. But you could imagine a situation in which the Supreme Court as a whole were to decide whether a particular justice were to

recuse him or herself. But for the most part, the Supreme Court has shied away from doing that, in part out of a kind of collegiality and the idea that once you've reached the point where your Supreme Court justice, you should be trust to make that decision on your own. And the law also says that judges should not participate in proceedings in which their spouse has an interest that

could be substantially affected by the outcome of the proceeding. Right, So that's one of those more specific rules that I mentioned earlier that goes to defining this question of when a justice's impartiality could be reasonably questioned, because that's such a broad proposition that the more specific ones have more bite, so to speak, because essentially they're getting at the problem of impartiality, but in a very specific kind of way

that's been tried in the past. So, according to the texts that have been revealed, Jenny Thomas weighed in on Trump's legal team legal strategy. She was actively involved in trying to get the election overturned. Justice Thomas participated in two cases related to election. He was the only justice who dissented when the Preme Court allowed the release of records from the Trump White House to the committee. Should

he have recused himself from those cases? My view in this matter is that for the case having to do with the emails, specifically, Justice Thomas, if he knew that his wife had emails that were at issue in that case, should have recused because in that case then she might have had an actual interest, so more than just sort of her own ideological agenda. She might have had a personal interest either criminal liability, civil liability, or at least,

you know, personal embarrassment at issue in that case. And so it seems to me that he, if he knew, really should have recused the other cases. For me or a harder call because what it is that is her interest is less concrete, and that makes it more difficult and not clear cut, because Supreme Court justices in the past, it's very clear that there's a record for recusing themselves in cases in which, let's say they have a financial and trust, or a spouse has a financial interest, or

they're connected to a party in the litigation. All of those are cases in which you see most Supreme Court justices recusing themselves in most cases. But the connection here is a little bit more intenuated. And so I think therefore you have to look at the particular case and see whether or not there's a concrete interest rather than just a sort of broad ideological interest, because that's the kind of case that you really can't have Supreme Court

justices recusing all the time. I mean, if you remember, President Trump calls for Justices Soda, my Or and at Ginsburgh to recuse themselves in old Trump related cases because they had said some things, you know, indicating their bias against him. And that's not the way this system works. So we have to find a line between those two where it's not just like there's a strong ideological interest, there's actually has to be some kind of concrete interest

at stake. Jenny Thomas has said that her work doesn't present a conflict with her husband's work on the Supreme Court. Justice Thomas has written that they were one being an amalgam and called her his best friend, and in one of the texts Jenny Thomas, such a Mark Meadows, thank you needed that. This plus a conversation with my best friend just now, I will try to keep holding on America is worth it. Also, she reportedly mentions her husband's

name in speeches and communications with other activists. So does that drag the Justice into it? Yeah, again, it's a tough issue. I think it looks bad in many many ways. But I also think we have an interest in not

thinking of spouses as one and the same. I mean, you can think of situations now we have like two professional people and one of them is a judge, and one of them is let's say, very active and involved in the local chapter of the a c l U. Now that doesn't mean that the judge, I think, would have to recuse himself in every case involving the a c l U. More broadly, and there's this underlying question of how to interpret the spousal relationship, and so in

the modern day, I don't think we want to impute all of the statements, all of the activity, all of the ideological leanings of one spouse to another spouse. But again, at a certain point it crosses over to being something inappropriate. And I think that is the point at which interest plays a role. So you can't say, you know, just because Jenny Thomas has said things that you know, if she were justice in the Supreme Court would make it clear that she's already decided how she would rule in

a case. That doesn't mean that I think that Justice Thomas would have to recuse. He hasn't made similar remarks. But at a certain point, if she's so involved that her emails are an issue, and there's a case that concerns those emails, well that's an interest And to me, that's the point of which he asked to accuse. Explain why what the importance of having a judge or a justice recuse from a case where they may be interested.

Explain what the reasoning is. Sure, So you know, we have Justices of the Supreme Court and judges throughout the system, and they are all presumed to be impartial, which means that they apply to law, to the facts, and determine the outcome without regard to who the particular parties are or or really what's at stake. And so you know, we all know that in some way people's ideology, their background, their experience informs the way they think of the law.

But that's different from somebody who's impartiality has really been seriously questioned or undermined compromised in some significant way. So, um, because we have this interest in judges not only being impartial but also seeming impartial, it is really important that we preserve this institution, and one of the ways that

we preserve this institution is through these rules. But you know, again that said, the appearance of impartiality does not mean that the judge or or justice doesn't have some relation and to the underlying issues, because otherwise we would have judges who would like basically lived under rocks their whole lives. So you know, there, it's that difficult line that we're

trying to draw here now. Last month, dozens of judicial ethics experts sent Chief Justice John Roberts a letter again asking for a code of conduct particular to the Supreme Court. Should Chief Justice Roberts do that, well, I think he

should certainly consider the question. Um, I you know, I think he has a point when he talks about the collegiality of the court and that you know that that each individual justice is a professional and makes these professional determinations in a serious way, and that you know, having a kind of situation in which they're all sitting in judgment of each other on these particular kinds of cases may not really um end up being you know, promoting

the ultimate interest in the ethical conduct of justices on the Supreme Court. So, you know, I in a way I shy away from suggesting how he ought to determine that because this is an institution that he's been a part of and I have not, But you know, I do think it's a good idea to think about these things.

I also think transparency is in incredibly important because you know, part of the issue is that the question of interest is a little has become harder to determine in the modern day because there's so much money and um kind of running around in politics and among litigation that sometimes it's hard to determine who actually has an interest. So I think transparency is really good, and I think it would be a good idea for the Supreme Court to

promote more transparency and their disclosures. But in terms of you know, strict rules, you know, I'm not sure how I feel about that one, and I defer to the Chief Justice to figure it out. Now, could Congress, if Congress you know, had the votes, could Congress step in and put in our accusal system for the justices. I think that would be really a problem ad from a separation of powers perspective, because we have these three co equal branches, and the Supreme Court sits at the top

of the judiciary. So I think if Congress were to come in and set refusal rules, it might be overstepping its bounds in terms of separations of powers. That I do think that would be problematic. We don't want a political branch to be making these kinds of determinations, even in a broadway. When it comes to the judiciary. The January six Committee is going to ask Jenny Thomas to appear before them. Suppose they decided to subpoena her. Does

that cross any boundary lines? I don't think unless they are asking for, you know, questions about Justice Thomas's celebration or how he's going to rule in particular cases, that actually having her appear before them is a problem at all, because for the same reason that I suggested before, where we really don't think of spouses in the modern day as one merged whole. She is her own person, with

her own involvement in this incident. And in so far as they are legitimately investigating this incident and she has valid she has relevant testimony that goes to their underlying question, well then there's no absolutely no reason that they shouldn't call her in front of them. Let's say a federal court or even a state court and a party asked the judge to recuse himself or herself because of a conflict.

If the judge doesn't recuse, is there a mechanism to appeal that, Yes, because there's an appellate system, so you can appeal or accusal order, just like you can appeal, you know, many other decisions that judges make, you know, all the way up let's say in the state system, you could appeal all the way up to the supreme

court of that state system. And you know, in some cases, if it's a constitutional issue or a federal issue, you would have a further reppellate um process into the federal system. And same um with regard to federal judges. But the problem here, of course, is that the Supreme Court is um at the top of that order, and so there is nowhere to appeal a of the Supreme Court. And so this is what creates the problem that people have recognized. And the question is what is the solution. As you suggested,

I think Congress is a faulty solution. Adopting a set of rules at the Supreme Court is a much less problematic solution because it's essentially the Supreme Court governing itself, which would not run into those same separation of powers problems. But we can't have an appellate system because they're, you know, by constitutional order, the Supreme Court is uh is at

the top of the federal judiciary. Because as you mentioned transparency, often when a Supreme Court justice recuses himself or herself, we're less trying to guess why so, oh, maybe Justice the leader, you know, he has investments in this, or oh wait, Justice Kagan took part this when she was a solicitor general. And it seems like we shouldn't be

guessing about those things. There should at least be a statement that says, I'm accusing my itself because of this right, and I think, you know, sometimes sometimes we have those sorts of statements and other times we don't. And I think you're absolutely right in terms of consistency and again in terms of transparency so the public can see, um.

It is important. And you know, I think that the the overall question is the legitimacy of the judiciary, and particularly the legitimacy of the Supreme Court, because I think in recent years, as we've become a more politically polarized nation,

the Supreme Court is losing some of that legitimacy. So how best to restore it is a very complicated question because requiring more recusals in some ways doesn't even though it seems at first like that might further the goal of the legitimacy of the Supreme Court, it might not, because part of our assumption is that judges are capable of putting out of their head these sorts of counter argument, you know, I mean, we don't think just because it's

a Trump judge, that Trump judge cannot sit in judgment of a case that you know, Trump has an interest in, or Trump has expressed a strong belief in. And we saw the judiciary working very well and which you know, there were judges appointed by politicians on both sides of the divide, including the former President Trump who ruled against Trump's interest. And that is because judges don't judge do politics, and so we need rules that further that, um, you know,

essential promise of our system. And while it seems like more recusal might it actually might backfire because it's essentially saying, oh, this judge can't be impartial because that judge has, you know, strong ideological beliefs. We don't want to rule like that. We want to rule that says, if you've got actual interest in this case, something that would really hurt you in some concrete way, then get off the case. And

that seems to make a lot of sense. But a Brigger rule that was like, well it might when it might you know, benefit your strong ideological beliefs, or even further your wife of a strong ideological belief I think that that's not necessarily going to further our interest in preserving the legitimacy of the courts. Thanks for being on the show, Rebecca. That's professor Rebecca roy Fee of New

York Law School. Prosecutors rested their case against the four men charged with planning to kidnap Michigan Governor Gretchen Whitmer before the national election. The men were arrested in October, as prosecutors say they moved closer to obtaining an explosive that could blow up a bridge and hold back police from responding to a kidnapping at Whitmer's vacation home. Shortly

after the arrest, Governor Whitmer called it domestic terrorism. On the view, this has been a tough year, there's no question, but I do think that a lot of the rhetoric that UM is more frequently available and being um stoked on on many platforms is downright dangerous, and I think we saw one example of how that has become a reality. My family and I are safe. We've never feared for

our safety because we have the phenomenal Michigan State Police. However, none of us can stand for these kind of actions in this country, and it needs to be a bipartisan call to action to bring the heat down to get to a place where we'll call out domestic terror for what it is. So Americans who are seeking to hurt or intimidate other Americans and it will not stand, and

none of us can can stand for it. Key evidence in the prosecution's case came from to undercover FBI agents and an informant who was among the extremeists for months and made hours of secret recordings. Particularly important was the testimony of two men involved in the plot who made a deal with the government and pleaded guilty. Joining me is Matthew Schneider, former United States Attorney for the Eastern

District of Michigan and a partner at Huntinggman. Online threats were made to the judge and two of the defense attorn niece. The FBI conducted a raid in suburban Detroit, but no one was arrested. How unusual are these kinds of threats in the middle of a trial. Well, unfortunately, it's not all that unusual. In the middle of any type of criminal trial that's high profile. You'll have threats to the parties involved. And here's the judge and the

defense attorneys. And the key I think is whether or not the jury finds out about this. And it's not really relevant to the trial, to the case at hand, So most likely the jury will never know that in the middle of the trial there were threats made. But you know, in our day and age, more and more is happening that that defendants and prosecutors and judges are indeed being threatened. It's kind of a sad commentary on our society. Oftentimes you hear about prosecutors being threatened rather

than defense attorneys. Do prosecutors have protection a certain amount? When I was a prosecutor, I carried a gun and I was a deputy U S. Marshal at the same time, I was apputized because of threats, And that happens because so many people just take managers into their own hands. But both prosecutors and defense attorneys are always targets, and sometimes for different reasons. The prosecution might be targeted because the defendants or whoever else does look like what they're doing.

But then the defense attorneys themselves can be targets because people might not like the way they're approaching the case or they think they're not doing a good enough job. So either way there can be threats. And the judge in this case has been careful about security. He's keeping the jurors name secrets. So do you think that's because

of the nature of the case. Yes, And you often see that in very high profile mafia cases or mob cases or cases with a lot of violence to keep the jurors out of it, so that that protects the jurors and it makes them feel better and more comfortable in actually doing the deliberation. Let's talk about how the prosecutions case has gone in there is in testimony from a variety of different people, FBI agents, FBI informants, former defendants,

who prosecutors flipped. What do you think about the way it's been presented in the witnesses that have been so both sides have scored some points, so to speak, in this trial, and it is because of the witnesses and what the government has done is it's put up both FBI and FBI agent who infiltrated the organization and then FBI undercover agents who describe exactly what was going on,

what the defendants were saying. And then secondly, we heard the actual words of the defendants, because these recordings took place and the words of the defendants were played in court, and those were quite powerful because they were talking about killing the governor or taking her out or doing something

else to kidnap her. And then we heard the actual cooperators themselves, two of the defendants who were charged in this case, decided that they were going to plead guilty and cooperate, and they took the stand and they explained in very serious tones what they were trying to do and the plot to kidnap Governor Wimmer. And it varies as to whether or not they were going to kidnap her or kill her, but either way, there's a kidnapping involved as charged by this case, and those cooperators talked

exactly about it. But did the defense make any headway during the prosecution's case in its cross examinations of prosecution witnesses, Yes, they really did. And if you think about it from the defense perspective, they have two arguments. One is either that this was really a half baked plan. It wasn't really thought out well, and the defense were kind of scatter brained, and they were smoking a lot of marijuana

and they were drunk. They in the opening statements, one of the defense attorneys even called it the stoned crazy defense because the things that they were talking about were so ridiculous. Sure, they were talking about kidnapping the governor, but they were also talking about going to the governor's house and hiding in the woods and make animal sounds

that she would come out because she likes animals. Where they talked about cutting down all the trees between Michigan and Indiana because that would cause a civil disturbance, none of that makes any sense. And so the theory is, if these things didn't make any sense, then the plot

to kidnap the governor also didn't make any sense. So they scored some points there, and the defense also some scored some points with the tapes because in some of these tape recordings where they talk about grabbing the governor, tying her up, putting her up on a table to display his evidence, people were laughing. Alright, So tone matters. If you're going to play a tape, you better make sure that it is an accurate tape. And also there's

a serious tone to it. And if people are laughing, then the defense that plays right into their hands that that they weren't actually serious. However, prosecution certainly scored a lot of points when there were a lot of other tapes played where no one was laughing, and it was quite chilling, and it was quite sinister and very serious.

A key defense witness, FBI informant Stephen Robeson, has asked the judge to keep him off the stand, saying he'll invoke the fifth Can you explain the situation with him? The fetes have said he could face criminal charges. Yes, Robeson was originally involved in this case as trying to find out on behalf the government what was going on, but then he tipped off the defense and gave them information and let them know that they were being looked at.

So his plan is, according to the reports, that he's going to take the Fifth Amendment and he's not going to testify. And the government's argument is, if he's just going to take the Fifth Amendment, there is no reason to even have him up on the witness stand. For him to come up and say nothing. Don't even put them up because you're exposing the jury to the fact that there's another person involved in this case who will not ultimately testify. That's kind of a waste of time.

And the judge has ruled already that two other mens of unit for the defense won't have to take the witness stand. Was it the same basic thing that they're going to take the fifth that's right. Normally, when somebody when you know that somebody is going to take take the Fifth Amendment, there is really no point in putting them up on the witness stand to say just that it's a distraction to the jury and it doesn't provide

any evidence because they're not testifying. Does that then become a point for appeal if they're convicted, Not necessarily, because the government can put up any witness at wants and the defense can as well. And in this case, the government is saying I don't want this person to testify, and then they ultimately don't, and it shouldn't be an a pilot point. So we've talked before, and you just mentioned there are a couple of different defenses going on here.

Is entrapment still the most effective one to your way of thinking, Well, there's certainly are only two defenses that have been laid out. One is the one that I just explained, which were that the defendan and had a half bag plan and they were crazy and they were stone. The second one is entrapment, that the government set them up, and the prosecution has been completely prepared for this because they've asked the witnesses, did anyone make you do this?

Or were you set up to do this? And the witnesses said no. So the defense may in their case, try to call witnesses on their behalf who will say that they really didn't want to do this, but they only did it because the government set them up for it. So they are playing out the entrapment defense, but it is quite frankly weak because the government is already covering it as well. So we'll see that's really a question for the jury to decide what are the sentences, Where

are the possible sentences if they're convicted. So in each of these sentences there's a possibility of up to life in prison, but that never happens in cases like this, no one ever gets the maximum sentence because of the sentence and guidelines. And the defendants who have already pleaded

guilty are facing about seventy five months. That sentence could go lower because they've cooperated, So I think you'll see at least seventy five months, and then in fact it could be fifteen, twenty or more years because of the fact that they put the government to their burden, forced them to go to trial, forced them to put all of this energy and time into this case, in which if they are ultimately found guilty, they could have just pleaded guilty and typically what happens is you will get

a longer period of time if you go to trial instead of if you plead guilty. This has been described by some as a historic domestic terrorism case that highlights the growth of extremism in America. Do you agree with that, Well, there are domestic terrorism cases that happen every year. This particular case, I actually I'm not certain that I agree with that, because this case evolved really out of COVID restrictions,

and that became very prominent in the trial. That the defendants were mad at the governor because of the fact that they had to wear masks or that they might have to get vaccinated, and that their liberty was restricted. That doesn't happen very often. It only happens during a pandemic, and so as normal extremism of cases roll out, those cases could happen every year. But let's hope that the facts and circumstances in this case don't happen very frequently.

Thanks so much for being on the show. Matthew. That's former United States Attorney for the Eastern District of Michigan. Matthew Schneider, a partner at Huntingman. Fallout continues from that now infamous Will Smith slap of Chris Rock at the Oscars. Wow, dude, it was a G I. Jangel. The producer of the Oscars, Will Packer told Good Morning America that Rock didn't want to pursue the incident, said rob, I got you, man, what do you want to do? Tell me? Well, you

want to do? I got you? And Chris Rock said, man, I don't want to do nothing. Joining me is Rachel Phose, managing partner of his y back Physe and Coleman. She formally represented the Academy at the Oscars. Rachel was the slap an assault and battery, and what would normally happen in that case. This is definitely an assault and battery. And so what would normally happen is really between nothing

and someone calling the police and pressing charges. And so if Chris Rock decided to press charges, he could easily do that. There is no question as to the fact if the l a p d wanted to and the city attorney wanted to, they could even press charges without Chris Rocks cooperation. So this is, without a doubt a crime. The facts are known, they are videotaped, They can be

shown in front of a jury. However, as there was not a major damage, there was no blood said, basically, the l A. T V and the city attorney, which is who prosecute misdemeanors, this was a misdemeanor assault battery is unlikely and I think not going to do that at all in this case without Chris Rocks cooperation, simply because they will not view this as a major crime that is worth their time unless the victim wants it to happen, because the call is always dis prestionary as

to whether to press charges. The Academy said it's conducting disciplinary proceedings. Is that a step further than when they said on Monday they were conducting an investigation? Yes, So I think Wednesday's statement was the strongest statement that the Academy has made. And I think they've now had the time to come together and get a direct message that they can all get on board with. And I think that message is going forward, we are conducting our review

and we will make a decision. And I think what they're also saying is there will be consequences. Do these kinds of disciplinary proceedings often take place because it is something that they have prepared for, They had to go through it with Harvey Weinstein, they had to go through it with Bill Cosby, they had to go through it

with Polanski. So they review what's happened, and then they decide, you know, whether those members are excelled from the Academy, if they're suspended, you know, should someone have an oscar, should they keep the oscar? And so that they had had to review things in the past based on sad behavior. But what is different here is that the behavior happened

as the award show. So it's not a criminal conviction that they're now looking at in hindsight or various allegations outside of someone's behavior that they're now looking at in hindsight. They are looking at an event that took a act their premises, you know, on their biggest night of the year. So that's what makes this disciplinary proceedings different. Even when they expelled people in the past like Weinstein and Polanski, the Academy never took their oscar away. So does it

seem highly unlikely that they would take Smith's away. That seems incredibly unlikely. I don't think they will take his oscar away. I think they would get more of a public backlash from taking his oscar away than from doing nothing, So that doesn't seem like it's really in the realm

of possibilities. What to me is directly in the realm of possibilities is that he's unable to present next year as he would traditionally be able to do so as an Academy winner, or that he's unable to even attend to show next year and maybe for a set amount of time going forward, or that he is suspended from the Academy for some amount of time up to an include being next year's show. Any of that seems like a slap on the wrist compared to what he did.

You know, the big night of the Academy is being able to attack. That's the big reward of being a member of the Academy and such a superstar as Will Smith is. You know, they can't throw him in jail. They're not going to press charges. The Academy only has a realm of consequences that they can implement. Jim Carey said on CBS that if he were Chris Rock, you would sue Smith because that video is going to be

out there forever. The insult is going to last a long time, so a civil suit is possible, even though it doesn't look like Rock would do that. Oh sure, I mean, all the facts are there without a doubt. Will Smith summitted a crime, And once he's committed a crime, it's very easy to do civilly. I don't know if Chris Rock is interested in pursuing the damages that he has suffered, which would be both physical and emotional, and

it probably seems like more passle than it's worth. But Chris Laws has not been particularly public with what he is going to do or how he is feeling, and maybe he's still processing that. On international TV in front of millions of people, he was Wow. Thanks Rachel. That's Rachel, Phse of Swayback, Phiz and Coleman, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast.

You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune in to The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg