By Andrew Chung and John Kruzel
WASHINGTON (Reuters) -U.S. Supreme Court Justice Samuel Alito rejected on Wednesday requests by Democratic lawmakers to recuse himself from two cases – one on Donald Trump’s bid for immunity from prosecution and the other on a charge involving the Capitol attack – after reports involving contentious flags flown outside his homes.
Alito, in two letters sent to congressional Democrats, said the flags at issue were flown not by him but by his wife, who he said was exercising her right to free speech under the U.S. Constitution. Trump, who is seeking to regain the presidency this year, quickly praised Alito’s decision.
The New York Times this month reported on two flags like those carried by some Trump supporters during the Jan. 6, 2021, attack on the U.S. Capitol that were flown at the justice’s homes. An upside-down American flag flew at his Virginia home in the Washington suburbs, while a flag bearing the words “Appeal to Heaven” flew at his vacation house in New Jersey.
The two flag incidents “do not meet the conditions for recusal” under the code of conduct adopted by the justices last year, Alito wrote in the letters.
The letters were addressed to Dick Durbin, who chairs the U.S. Senate Judiciary Committee, and fellow Democratic Senator Sheldon Whitehouse, and to dozens of House of Representatives Democrats including Hank Johnson.
Alito told the lawmakers that the flag-flying was done by his wife, Martha-Ann Alito.
“My wife is a private citizen, and she possesses the same First Amendment rights as every other American,” Alito, a member of the court’s 6-3 conservative majority, wrote in the letters. “She makes her own decisions, and I have always respected her right to do so.”
Alito said that his wife has flown a variety of flags over the years including patriotic flags, seasonal and religious flags, as well as those representing sports teams and celebrating family ancestry.
“My wife is fond of flying flags,” Alito wrote. “I am not.”
‘JUDGE AND JURY’
The justices last November adopted their first formal code of conduct following revelations of undisclosed luxury trips and hobnobbing with wealthy benefactors by some of them that raised questions about their ethical standards.
“While I’m encouraged that Justice Alito saw fit to respond to the two letters seeking his recusal, his unilateral and final decision as judge and jury over our recusal request demonstrates the urgent need for Congress to pass legislation that imposes on Supreme Court justices a code of conduct with an enforcement mechanism,” Johnson said in a statement.
The offices of Durbin and Whitehouse did not immediately respond to requests for comment.
One of the two cases that Democratic lawmakers asked Alito not to participate in involves Trump’s claim of presidential immunity from prosecution on federal criminal charges relating to his efforts to overturn the 2020 election results.
The other involves a challenge by a Pennsylvania man to a federal criminal charge of obstruction that he faces for his involvement in the Jan. 6 riot. Trump faces the same charge in the election-related criminal case brought against him by Special Counsel Jack Smith.
Both cases already have been argued before the court, with ruling expected by the end of June. The court is next due to issue rulings on Thursday.
Trump, the Republican candidate challenging Democratic President Joe Biden in the Nov. 5 U.S. election, in a social media post praised Alito for rejecting calls to recuse.
“Congratulations to United States Supreme Court Justice Samuel Alito for showing the INTELLIGENCE, COURAGE, and ‘GUTS’ to refuse stepping aside from making a decision on anything January 6th related,” Trump wrote, adding that, “All U.S. Judges, Justices, and Leaders should have such GRIT.”
Alito in his letters elaborated on his wife’s actions in flying the two flags. He reiterated that she raised the upside-down flag while distressed over a dispute with a neighbor, during which he said the neighbor had used the “vilest epithet” against his wife.
The New York Times on Tuesday reported on some discrepancies, including that the name-calling took place weeks after the inverted flag was taken down.
As for the “Appeal from Heaven” flag, which has come to symbolize hopes by some conservative activists for a more Christian-centered U.S. government, Alito said he was not familiar with it.
“I was not aware of any connection between that historic flag and the ‘Stop the Steal Movement,’ and neither was my wife,” Alito wrote, referring to Trump’s false claims that the 2020 U.S. election was stolen from him through widespread voting fraud.
