Special counsel Jack Smith wants Donald Trump to go to trial over his alleged election fraud charges before the presidential election next November. And it looks like that could happen, despite the former president's desperate desire to delay. But Trump still has one possible Hail Mary remaining. He could try to somehow kick the case up to the Supreme Court, where the conservative majority could rescue him. That Supreme Court was one of the last, desperate plans for Trump’s 2020 coup. And there is at least one very conservative justice who one of Trump’s co-conspirators thought would be particularly inclined to help out: Clarence Thomas.
There is at least one very conservative justice who one of Trump’s co-conspirators thought would be particularly inclined to help out
Justice Thomas is probably the most right-wing member of the Supreme Court in living memory. He is fully committed to re-making the country in his conservative vision. But the other key thing you need to know about Clarence Thomas is that he has always wanted to be rich. It is part of what drove him from a childhood in abject poverty to an Ivy League law school. As explained in the Frontline PBS documentary about Thomas, attending Yale Law School “was a chance to leave Pin Point [Georgia] far behind, defy his grandfather’s prophecy and get positioned to make real money.”
For a time, Thomas did work in the private sector for the agrochemical giant Monsanto. But by 1981, he was nominated for a position in the Reagan Administration. President George H. W. Bush elevated Thomas to a federal judgeship, and in 1991, nominated him to the Supreme Court. When Clarence Thomas chose to take that path, he was foregoing a lot, and I mean a lot, of potential income. Supreme Court justices are paid well, but nowhere near as much as a corporate lawyer. Thomas said himself, in a 2001 speech to the Savannah Bar Association that it is not a job that you do for the money.
And being a Supreme Court justice is also not a job that you leave. Thomas has been on the court for more than 30 years now, making a very good, upper-middle-class salary. Certainly enough to live comfortably and take nice vacations. But not enough to be really rich. You do not get to be a flamboyantly rich guy if you are a Supreme Court justice.
But there are a lot of flamboyantly rich guys who have a real interest in keeping Clarence Thomas on the court — people who share his right-wing ideology who want him to rule in line with their conservative vision. And so, they seem to have created a way of letting Thomas have his cake and eat it too: Thomas stays put — in his supremely important public sector job — and his wealthy, right-wing supporters pay for him to live like a rich guy.
In fact, new reporting from ProPublica reveals that Thomas has received gifts, “underwritten by benefactors who share the ideology that drives his jurisprudence,” including “at least 38 destination vacations, including a previously unreported voyage on a yacht around the Bahamas; 26 private jet flights, plus an additional eight by helicopter; a dozen VIP passes to professional and college sporting events, typically perched in the skybox; two stays at luxury resorts in Florida and Jamaica; and one standing invitation to an uber-exclusive golf club overlooking the Atlantic coast.”
That comes on top of previous investigations revealing that billionaire Republican donor Harlan Crow purchased property from Thomas, including his mother’s home, where she now lives rent free. Crow also paid private school tuition costs for Thomas' grand-nephew, who Thomas raised as a son. None of which Thomas ever disclosed.
So this appears to be the deal between Clarence Thomas and his Republican benefactors. You want yachts? We’ve got yachts. You want private jets? We’ve got private jets. You want a fancy elite education for your adopted son? We’ve got it. We will give you the life you want if you stay on the court where we need you, pursuing the ideological project we are all committed to. This is why gifts are supposed to be at the very least disclosed and regulated. It can be shockingly corrupt. But this deal has meant that Clarence Thomas, one of the most powerful men in the country who sits on the highest court in the land, is essentially a kept man.
And apart from the dangers of this as it relates to his day-to-day job of ruling on cases that come to the Supreme Court, this set up has real implications as it relates to what Donald Trump was trying to do in the wake of the 2020 election.
We know that Clarence Thomas’s wife, Ginni was corresponding with one of Trump’s lawyers John Eastman after the election. Eastman was the author of the original coup memo — and also a former clerk for Justice Thomas. On Dec. 4, 2020, Ginni asked Eastman if he would “present a status update to a group of grassroots state leaders,” presumably, an update on his effort to help Donald Trump steal the election.
We also know that John Eastman spoke about his theory to overturn the 2020 results with a lawyer for Vice President Mike Pence, Greg Jacob. In that conversation Eastman talked about how he thought it would play out if a dispute over the election made it all the way up to the Supreme Court.
Jacob testified about this at the January 6 committee hearing last year:
We had an extended discussion, an hour-and-a-half to 2 hours on January 5th. And when I pressed him on the point I said, ‘John, if the Vice President did what you were asking him to do, we would lose 9 to nothing in the Supreme Court, wouldn’t we?’
He initially started, ‘Well, I think maybe he would lose only 7-2.’ And after some further discussion acknowledged, ‘Well, yeah, you’re right, we would lose 9-nothing.’”
They were really counting on Clarence Thomas, the kept man. They thought he would be one of the two to vote in their favor, and he could even be counted on to unilaterally rule for them in an emergency appeal as the “circuit justice” for Georgia.
This comes from an email written by another Trump lawyer named Kenneth Chesebro, who wrote another coup memo, recently revealed by The New York Times.
Possibly Thomas would end up being the key here, circuit justice right? We want to frame things so that Thomas could be the one to issue some sort of stay or other circuit justice opinion saying Georgia is in legitimate doubt. Realistically, our only chance to get a favorable judicial opinion by January sixth, which might hold up the Georgia count in Congress, is from Thomas.
Of course, it did not play out the way they had planned. The coup didn’t work. To be fair, I think the theory was so cockamamy that even if it had gotten up to the Supreme Court, it would have died a 9-0 death, like Greg Jacob thought.
But what happens if some aspect of Donald Trump’s election case ends up in front of this Supreme Court? What if they have an opportunity to delay — maybe even silently with a shadow docket — so that Trump is spared a trial before the election. Will Clarence Thomas, the kept man whose life of luxury is subsidized by right wing benefactors, deliver for the right wing?
This is an adapted excerpt from the August 10 episode of “All In with Chris Hayes."