THIS WEEK INSIDE THE BIG TENT:

I had just put the finishing touches on last week’s newsletter—about how truly restoring Normal Politics will require Democrats to do extraordinary things—when the Clarence and Ginni Thomas news broke. This week’s edition is thus a sequel of sorts, because my argument about normalcy applies to these new scandals in every particular. 

Happily, the inconvenient timing of the scoop has given us a full week to assess how Democratic leaders intend to respond: Will they fixate on the Thomases’ bad deeds in the tone of outrage they deserve, to strike a blow for real norms? Or will they offer a cursory rebuke merely to uphold the trappings of normalcy? Unhappily, if you’re a regular reader (a.k.a. a “Tent-head”) you probably knew the answer before anyone posed it as a question.

First, let’s review what we know, suspect, and don’t know about the Thomases’ conduct.

We know:

• Ginni Thomas communicated with Donald Trump’s last White House Chief or Staff Mark Meadows, GOP members of Congress, other administration officials, and a network of elite right-wing lawyers including many of her husband’s former clerks, about overturning the election and re-installing Trump in power for an illegitimate second term.
• She claimed to have discussed these matters as well with her “best friend.”
• Also, “best friend” is her sobriquet for Clarence (which, let’s face it, would be incredibly heartwarming, if they weren’t quite so corrupt).
• The January 6 committee knows about the Meadows communications, because he handed them over of his own accord, before contemptuously ending his cooperation with the committee.
• There’s an unexplained gap in the available Thomas/Meadows correspondence between late November and after the insurrection.
• There’s also an unexplained, eight hour gap in Trump’s insurrection day call log.
• Filling those gaps will require the committee (and, hello Merrick Garland, DOJ?) to review other White House records and private telecommunications records. 
• Congressional Republicans and Ginni Thomas have reacted with suspicious alarm at the thought of their phone records becoming public, and have retaliated against the two GOP members of the January 6 committee. Kevin McCarthy even threatened telecommunications companies with revenge if they cooperate with the January 6 committee.
• Clarence Thomas participated in numerous election and coup-related cases before the Supreme Court, most suspiciously when he voted alone to hear Trump’s farcical legal challenge to the election, and then voted alone a year later to conceal Trump administration records from the January 6 committee.

Yikes. 

Knowing all this, we thus strongly suspect, but can’t assert:

• Ginni talked to her husband about efforts to overturn the election.
• He had reason to believe Trump-era White House records would contain evidence of her involvement in (or adjacency to) the coup.
• He took his vote to give the coup a fighting chance in court in futherance of his wife’s goal of ending constitutional government in the U.S.
• He took his vote to conceal evidence from the January 6 committee corruptly, to protect his wife, and possibly to cover up other damning evidence.

And if we work to confirm or disprove what we suspect, we’d learn about things we really don’t know, such as:

• To what extent Ginni Thomas was aware of or involved in non-procedural (that is, violent) efforts to overturn the government.
• To what extent was her husband also aware that the plot his wife was at least privy to involved organized violence.  
• How many other cases Thomas has ruled in to advance his wife’s interests.

I want answers; I think I’m entitled to them; I can handle the truth; etc etc. I also want politics to be more normal than it is, and that can’t happen if Democrats allow these revelations to be swept away by the news cycle.

Already, I think we know enough to conclude that Thomas should no longer be a Supreme Court justice. Even if you disagree with that, you can’t credibly deny that further investigation could easily tip the balance. Confronted with this astonishing fact pattern and evidentiary trail, though, leading Democrats seem to want to make the scandal go away. To put the Ginni back in the bottle, if you will.

Most Democrats, including party leaders and members with committee jurisdiction over it, stayed silent for as long as they could. A handful of more battle-ready Democrats said Thomas should resign, or be impeached. Sen. Ron Wyden (D-OR) stepped into the void created by colleagues with jurisdiction to say Thomas should at least recuse himself from election and insurrection related cases going forward. Sen. Elizabeth Warren (D-MA), Rep. Pramila Jayapal (D-WA), and a small number of co-signatories in both chambers sent a letter to Thomas and Chief Justice John Roberts asking them for an explanation of Thomas’s failures to recuse, for a commitment to future recusals, and for Roberts “to creating a binding Code of Conduct for the Supreme Court…that includes (1) enforceable provisions to ensure that the Justices comply with this Code and (2) a requirement that all Justices issue written recusal decisions,” all while “Congress considers its response to these latest revelations.”

Something in this neighborhood has become the adopted position of the leadership: Thomas should recuse going forward, and maybe the Supreme Court should be governed by binding ethics rules. Chuck Schumer said, “I do think he should recuse himself. The information we have right now raises serious questions about how close Justice Thomas and his wife were to the planning and execution of the insurrection." House Speaker Nancy Pelosi told the Democratic caucus, “It’s up to an individual justice to decide to recuse himself if his wife is participating in a coup.” Generously we can say she was mocking the existing conflict-of-interest rules; but at bottom she had no answer to the question, what can Congress do to hold the Thomases accountable for past sins.

As much as I appreciate any effort to get the party to do something rather than nothing, I’d like these Democrats, straddling the poles of their caucuses, to give a bit more thought to the inherent absurdity of demanding that if a Supreme Court justice was privy or party to a plot to overthrow the republic he must recuse himself from certain cases in the future. That an apparent enemy of constitutional government must follow the basic ethical rules of constitutional government. 

I appreciate that Democrats can’t make Thomas resign, and that if they impeach him, Senate Republicans will once again make themselves party to vast corruption by acquitting him of any wrongdoing. I even agree to some extent with Dan Pfeiffer that—because of this complicity—the ultimate recourse can only be for voters to punish Republicans for conspiring against the United States. 

But there will be no price to pay if voters never learn that something deeply wrong is afoot; that there’s a blood clot in the heart of our system of self-rule. Democrats who say this must fall to voters to remedy also must know that under this leadership team's approach, that’ll never happen; Democrats can’t make this scandal a high-salience issue with short-lived demands for recusal that fall on deaf ears. 

And the key is, the alternative to what they’ve done isn’t “nothing.” There’s a great deal more they could do. 

• They could subpoena Ginni Thomas’s testimony before the January 6 committee and/or the Judiciary and oversight committees. 
• They could ask her under oath whether she discussed her desire or efforts to overturn the election with her husband.
• They could subpoena records pertinent to previous cases where it appears Clarence Thomas worked as his wife's agent on the Supreme Court.
• If she refuses to appear or to answer questions, they could hold her in criminal contempt of Congress.
• They could censure Thomas. 
• They could impeach Thomas in the manner of an ultimate censure, foregrounding for voters that, because they are parties to corruption, Republicans will make sure he isn’t removed from office.

If I were a Democratic leader, I think I’d probably balance the competing wings of the party by saying something like, “we need to investigate this matter aggressively, because if what appears to be true is proved, it’s impeachable conduct.” That would subject the Thomases to an aggressive public fact-finding effort, and leave the door open to either another symbolic impeachment, or, alternatively, some kind of party-wide statement that Thomas’s continued service is intolerable—and that those protecting him are unfit for office. 

Democratic congressional leaders, by contrast, said...well, you saw. Joe Biden’s take was, “I’ll leave that to two entities: one, the Jan. 6 committee, and two, the Justice Department.”

It’d be great if we could skip ahead a few steps to a normal future where the parties fight about who’s at fault for inflation and what to do about it. Where they appeal to voters on the basis of their governing records and sincerely held values. Certainly that’d feel more normal than declaring a sitting Supreme Court justice an enemy of the Constitution.

But if Democrats let the Thomas scandal fade into memory by pretending we’ve already returned to normal, Thomas will remain on the bench to help decide cases about who gets to hold power in America in perpetuity, without any repercussions for him or the court, and we’ll never have normal so long as that’s the case. 

More than that, we can expect him and his wife to be more brazen about it next time, because we know what impunity for Trump loyalists has sown. Just this week, Trump openly asked Vladimir Putin—more than once, even!—to fabricate and release defamatory claims about Hunter and Joe Biden; a happy synthesis of previous collusion episodes such as “Russia, if you’re listening,” and “I’d like you to do us a favor, though.” He even framed it as a way for Putin to hurt the United States while the Biden administration sides with Ukraine against Russia in Putin’s war. 

Trump should, at the very least, know that this sort of solicitation is a one-way ticket to pariah status. If this were a functioning democracy, he’d have been disqualified from federal office by Congress for doing similar shit in the past, or he might expect a call from the FBI for soliciting a thing of value in an election from a foreign entity. What he actually knows is that Republicans are happy to cover for him and Democrats don’t have the stamina to make sure voters understand this as a defining act of national betrayal. 

We have no reason to assume the Thomases won’t see things the same way.

This cycle of impunity for Trump loyalists and the enabling timidity of his opponents is a live torpedo aimed directly at what’s left of both U.S. democracy and the Democratic Party itself. Consider this somewhat alarming New York Times article about a long-running federal investigation of Hunter Biden that has devolved into a fishing expedition. How? Well, if you read between the lines, it’s because it’s overseen by a Trump-loyal U.S. Attorney who’s looking for a pretext to bring charges that would create propaganda value for the GOP, and who has been allowed to keep his job because Merrick Garland is in a bind fears the optics of dismissing him. See likewise: Special Counsel John Durham. Operating as they do, Joe Biden and other party leaders could easily wake up one day soon to find multiple high-profile Democrats and their families in greater legal jeopardy than Trump or anyone in the inner-circle of his coup (because of course, Garland also doesn’t like the optics of charging leaders of the other party). 

If you insist that criticizing the Democratic party leadership over the Thomas stuff creates a circular firing squad where one isn’t necessary, or that it constitutes making unreasonable demands of Democrats purely for social-media clout, I promise you that the actual idea is to disrupt this cycle of aggression and retreat before it wrecks the country—and I’d ask how holding leaders harmless for letting things get so out of hand helps us avoid such a calamity. 

And the thing is, the ask here isn’t even very big. It’s for Democrats to accurately describe the threat Thomas (much like Trump) poses to democracy, dig for bedrock truth, say what the proper remedy should be, and do so with a tone of alarm that matches the danger. They could even skip the impeachment if they were clear enough about why and nobody would fault them for it.

I promise if they did that, the circular firing squad would unspool into an echo-chamber, and we could all take umbrage together at the Thomases and the Trumps and the sordid details of their many crimes.