Some say Alito should recuse from Trump sentencing case after phone call

Some judicial ethics experts and Democratic lawmakers say Supreme Court Justice Samuel A. Alito Jr. should recuse himself from a decision on whether President-elect Donald Trump’s sentencing in New York can go forward on Friday, citing a phone call between the two men earlier this week.

Alito said in a statement that he took the call from Trump on behalf of a former law clerk who is seeking a job in the new administration. Alito said he discussed Will Levi’s qualifications with the president-elect, but did not talk about Trump’s upcoming sentencing for a 34-count felony conviction related to a hush money payment in 2016.

At the time of the phone call Tuesday, Alito said, he was unaware that Trump planned to ask the Supreme Court to delay the sentencing. Trump says the sentencing would improperly disrupt his presidential transition. That request landed with the high court late Tuesday night.

Some judicial ethics experts, a former judge and Democrats said Thursday that Alito should not have taken the call from Trump, who as president-elect is likely to have other business before the court in coming months and years as well. Trump has already asked the high court to delay a law banning TikTok if it does not divest from Chinese ownership. The court will hear oral arguments in the high-profile case Friday.

Stephen Gillers, a New York University law professor and expert on judicial ethics, said any litigant would welcome the opportunity to talk with a judge who would soon be deciding his case. He said the call violated the court’s ethics code, adopted a little over a year ago, which calls on justices to “avoid impropriety and the appearance of impropriety in all activities.”

“Alito’s willingness to agree [to a call] gives a whole new meaning to the term tone deaf,” Gillers wrote in an email. “Alito’s conduct further undermines public perception of the court’s independence. The conduct creates the appearance of impropriety, and Alito should recuse himself from Trump‘s request for a stay of his sentence.”

Jeremy Fogel, executive director of the Berkeley Judicial Institute and a former federal judge appointed by President Bill Clinton, also said the call raised red flags. Fogel declined to say whether Alito should recuse from Trump’s case.

“Contemporaneous out-of-court communications between a party to a legal proceeding and a judge or Justice presiding over that proceeding generally are prohibited, and even if the subject matter is distinct, appearances can be problematic,” Fogel wrote in an email.

Sen. Richard Blumenthal (D-Connecticut), who sits on the Judiciary Committee, called on Alito to recuse himself from Trump’s case in a post on X. “Justice Alito has made impropriety the norm,” Blumenthal wrote - an apparent reference both to the call and previous controversies involving Alito.

Alito, however, described the call as routine. Court experts said it is typical for justices to provide recommendations for former clerks, but direct communications between presidents and justices have grown less common in recent years.

“We did not discuss the emergency application he filed today, and indeed, I was not even aware at the time of our conversation that such an application would be filed,” Alito wrote in a Wednesday statement, which was first reported by ABC News. “We also did not discuss any other matter that is pending or might in the future come before the Supreme Court or any past Supreme Court decisions involving the President-elect.”

Others said they did not see ethical issues with the conversation, including Robert Luther III, a George Mason University law professor who served in the White House counsel’s office during Trump’s first term.

“There is nothing wrong with a Judge or Justice sharing their experiences with former law clerks to prospective employers,” Luther wrote in an email. “Imputing any other motive beyond that here is simply partisan wishcasting - and frankly bad faith.”

Neither the Trump transition team nor Levi responded to requests for comment on Thursday.

Trump asked the Supreme Court to intervene in his New York case late Tuesday, seeking to delay the sentencing in a case that involved a hush money payment to adult film actress, Stormy Daniels before the 2016 election.

In addition to arguing that the sentencing would interfere with his presidential transition, Trump’s attorneys say he is immune from criminal proceedings in the case and that the sentencing should be delayed while he pursues appeals.

The trial judge in the case has said he plans to order an “unconditional discharge” for Trump, a designation in New York criminal courts for a non-jail and non-probation sentence that carries no other obligations. But the sentencing is the final step in Trump officially being classified as a felon.

Thursday was not the first time Alito has faced public calls for recusal from cases. Following reports earlier this year that politically-charged flags adopted by Jan. 6 rioters were seen flying at Alito’s homes in Virginia and New Jersey, judicial ethics experts and Democrats called on Alito to withdraw from cases related to the 2021 attack on the U.S. Capitol.

Alito declined to recuse himself, saying the flags were raised by his wife and did not merit taking such a step.