Justice Alito Refused to Recuse After Phone Call With Trump

WASHINGTON — President-elect Donald Trump’s criminal sentencing went through as scheduled Friday but the controversy it created with a Supreme Court justice continues.

Trump was sentenced to “unconditional discharge” by a New York judge after conviction on charges of falsifying business records to cover up a sexual affair with an adult film actress. He will incur no prison times or fines but retain a felony record.

He appealed to the Supreme Court to stop the sentencing but his appeal was denied Thursday. The majority opinion included three dissents, one of them from Justice Samuel Alito Jr.

Three days before the sentencing, Trump phoned Alito to discuss a job referral for a Supreme Court law clerk to the incoming presidential administration.

Alito did not recuse himself from Trump’s sentencing appeal. He said his phone call over a job referral did not create a conflict of interest.

“I agreed to discuss this matter with President-elect Trump, and he called me [Tuesday] afternoon,” Justice Alito said in a statement. “We did not discuss the emergency application he filed [Wednesday], and indeed, I was not even aware at the time of our conversation that such an application would be filed.”

Some Democrats in Congress were unconvinced about his sincerity. They described it as a pattern of self-serving actions by Supreme Court justices.

Rep. Jamie Raskin, D-Md., ranking member of the House Judiciary Committee, said Alito’s phone call created an “appearance of impropriety.”

He added, “Especially when paired with his troubling past partisan ideological activity in favor of Trump, Justice Alito’s decision to have a personal phone call with President Trump — who obviously has an active and deeply personal matter before the court — makes clear that he fundamentally misunderstands the basic requirements of judicial ethics or, more likely, believes himself to be above judicial ethics altogether.”

Raskin referred to incidents in which a flag associated with Trump’s “Stop the Steal” movement and an upside-down American flag were flown outside Alito’s homes in New Jersey and in suburban Virginia. He blamed the displays on his wife.

Alito’s neighbors in the Washington, D.C., suburb of Fairfax County said the upside-down American flag flew at Alito’s home for several days after rioters stormed the U.S. Capitol in January 2021.

After ABC News reported the phone call with Trump on Wednesday, Reps. Hank Johnson, D-Ga., and Jasmine Crockett, D-Mo., wrote a letter to Alito saying he must have been aware of a conflict of interest because it was “apparent to anyone following the case” that Trump would seek relief from the Supreme Court from his criminal sentencing.

“You stated that the call was simply a reference check for a potential government employee,” the letter says. “But that does not pass the smell test.”

Johnson and Crockett added, “Scandal after scandal has led to rock-bottom levels of trust in the Supreme Court. To protect what is left of the integrity of the court, you must recuse yourself from any decisions in the case of Trump v. New York.”

The Democrats’ complaint coincides with a move in Congress to fundamentally alter the way the Supreme Court does business. Both Democrats and Republicans have complained the Supreme Court has become overly politicized and sometimes motivated by personal interests of the justices.

A leading piece of reform legislation is the Supreme Court Ethics and Investigations Act. The pending bill introduced last summer would establish the equivalent of an inspector general for the Supreme Court.

The Office of Investigative Counsel proposed in the bill would investigate reports of ethical lapses by Supreme Court justices and report them to Congress.

It was introduced by Rep. Mikie Sherrill, D-N.J., who said she was motivated partly by recent revelations that Alito and Justice Clarence Thomas accepted valuable gifts from wealthy donors.

Some conservatives say ethics legislation imposed by Congress would interfere with the independence of the Supreme Court in violation of the separation of powers required by the Constitution.

The Supreme Court tried to respond to calls for reform by adopting an ethics code just over a year ago. It says the justices should “avoid impropriety and the appearance of impropriety in all activities.”

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