Alito rejects Jan. 6 recusal request over flag controversy
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Supreme Court Justice Samuel Alito in Washington, D.C., in October 2022. Photo: Alex Wong/Getty Images
Supreme Court Justice Samuel Alito on Wednesday denied a request from Democratic lawmakers for him to recuse himself from cases involving former President Trump and Jan. 6 defendants because of a controversy over flags flown at his homes.
Why it matters: The Supreme Court justice has been under scrutiny since two flags with connections to Jan. 6 were flown at his properties.
- The events heightened worries among Democrats that Alito participating in the cases would be a conflict of interest.
Context: An upside-down American flag, a symbol of the "Stop the Steal" movement, was hung outside the Alito home days after the Jan. 6 attack, the New York Times reported earlier this month.
- The Times later reported that a second "Appeal to Heaven" flag associated with the "Stop the Steal" movement was flown at Alito's vacation home as recently as 2023.
- In both instances, Alito said his wife hung the flags.
In response to the reports, Democratic lawmakers led by Senate Judiciary Chair Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.) called on Alito to recuse himself from upcoming Jan. 6-related cases before the court.
- Among those cases is an appeal brought by a man charged with obstructing an official proceeding by participating in the Jan. 6 Capitol attack.
- How the court decides that case won't only affect cases against hundreds of other Jan. 6 defendants, but it will affect the Department of Justice's 2020 election interference case against Trump, as he was also charged with obstructing an official proceeding.
- The court is also hearing Trump's claim of "absolutely immunity" from prosecution, which stemmed from the DOJ's election case.
What they're saying: Responding to their calls on Wednesday, Alito said he will not recuse himself over the flag controversies because they were his wife's doing.
- He said his wife hung the upside-down American flag in response to a dispute with a neighbor and was also unaware that the "Appeal to Heaven" was associated with an effort to overthrow 2020 election results.
- "A reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that this event does not meet the applicable standard for recusal," Alito wrote. "I am therefore duty-bound to reject your recusal request."
Between the lines: There are chronological errors with Alito's claims regarding the upside-down American flag, as the argument he references took place a month after the flag was hung, according to the Times.
- The house of the neighbors with which Alito's wife got into a dispute does not have a direct view of the Alito residence.
The big picture: The reports about Alito's residences came as public trust in the nation's highest court has nosedived in recent years from numerous controversies, including Justice Clarence Thomas' acceptance of undisclosed lavish gifts from billionaires who eventually had legal interests before the court.
- Thomas has also faced calls to recuse himself from Jan. 6-related cases over his wife Virginia "Ginni" Thomas' involvement in efforts to overturn 2020 election results.
- The ethics code adopted by the Supreme Court last year says that justices should "avoid impropriety and the appearance of impropriety in all activities."
The bottom line: The court in the coming weeks is set to rule on cases that could affect the 2024 presidential election and others that may greatly restrict the regulatory functions of the federal government.
Go deeper: Washington Post sat on Alito upside-down flag interview for years
Read Alito's rejection letter:
Editor's note: This story has been updated with the latest.
