Law 'Requires' Samuel Alito to Disqualify Himself from Trump Case—Attorney

Supreme Court Associate Justice Samuel Alito poses for an official portrait at the East Conference Room of the Supreme Court building on October 7, 2022, in Washington, DC.

Former federal prosecutor and legal analyst Glenn Kirschner told the co-hosts of MSNBC's The Weekend on Sunday that the law "requires" Supreme Court Justice Samuel Alito to disqualify himself from former President Donald Trump's federal election interference case.

Alito, one of six conservative justices on the Court, has faced recent criticism after The New York Times reported in May that an "Appeal to Heaven" flag was flown at his vacation home in New Jersey last summer and an upside-down American flag was flown outside his Virginia home 11 days after Trump supporters stormed the U.S. Capitol building to stop Congress from certifying Joe Biden's 2020 election win on January 6, 2021. Both flags have been used as a symbol of support for Trump in the wake of his 2020 election loss. The justice said that it was his wife's decision to fly the flags and that he had nothing to do with it.

The Capitol riot erupted following claims from Trump that the election was stolen from him via widespread voter fraud, despite there being no evidence to back up these claims. Trump has pleaded not guilty to four federal felony counts in relation to the riot and claims the case is politically motivated.

Despite calls from Democratic lawmakers to recuse himself from cases involving Trump and the riot, Alito declined to step aside, writing in a letter in late May that the two flag incidents "do not meet the conditions for recusal," citing the Court's code of conduct.

Kirschner, a former assistant U.S. attorney and frequent critic of Trump, added to Alito's recent criticism during an appearance on The Weekend on Sunday.

Speaking about November's election, which will likely be a rematch between Trump, the presumptive GOP presidential nominee, and President Biden—Kirschner said, "You could take the names off the ballot. Just have two boxes on the ballot. Democracy, dictatorship. Which one are you going to check?"

He continued: "And I think the Supreme Court piece factors into that, because right now the Court seems to be captured. When you look at [Supreme Court Justice Clarence] Thomas and Alito who are about to sit in judgment on probably the most important January 6th case, whether Donald Trump should be supreme leader, a dictator above the law, have absolute immunity."

The ex-prosecutor added that Alito and Thomas "are conflicted."

"Don't take my word for it. Just look at the federal law that says if a judge or a justice, expressly in the federal law, if their impartiality might reasonably be questioned, the law requires them to disqualify themselves. Are they going to?" Kirschner asked.

Newsweek has reached out to the Supreme Court via online form.

Kirschner was referring to a Supreme Court decision that the public has been waiting weeks for. In April, the Court heard arguments on a claim made by Trump in an effort to appeal the federal election interference case against him. Trump's legal team argues that he has immunity from prosecution because he was still in office during the Capitol riot.

Alito wrote in his letter to Democrats that "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 the flag incidents "does not meet the applicable standard for recusal."

Kirschner rebuked Alito's reasoning, telling Newsweek via telephone on Sunday afternoon, "When the test in the federal law is one of reasonableness, right? Whether your impartiality might reasonably be questioned, you, the person whose conduct is at issue are not the one who gets to decide if your decision is reasonable."

He added: "For him to say, I find my refusal to disqualify myself to be reasonable. No, you know that's not the way the test works. The way the test works, is you look to the average ordinary person, including, legal experts left, right and center to see if your decision not to recuse is reasonable. Not whether you believe it's the right decision."

Thomas, another conservative on the Court, has also not recused himself from cases involving Trump and the riot, despite calls to do so over his wife's pro-Trump activism.

Virginia "Ginni" Thomas attended Trump's rally held at The Ellipse near the White House on the day of the riot, commonly referred to as the "Stop the Steal" speech. She previously told The Washington Free Beacon that she did not help organize the rally and she left early before Trump supporters turned violent.

In March 2022, text messages between Ginni Thomas and Trump's former chief of staff Mark Meadows in the weeks following the 2020 election were made public. In the text message exchange, which was obtained by the House select committee tasked with investigating the riot, Ginni Thomas told Meadows he should encourage Trump not to concede to Biden.

Ginni Thomas told the committee in September 2022 that her husband "was completely unaware" of her text message exchange with Meadows "until this Committee leaked them to the press."

Start your unlimited Newsweek trial