The question isn’t whether Supreme Court Justice Samuel Alito spoke to Donald Trump ahead of the president-elect asking the high court to block his sentencing in a criminal case. The far-right jurist has already acknowledged that the conversation took place.
The question, rather, is why the two men chatted — and whether the conversation crossed any ethical lines.
We know that Alito and Trump spoke on Tuesday, just hours before the Republican’s defense team appealed to the justices to halt his upcoming sentencing. According to the justice — who doesn’t exactly have a deep reservoir of credibility to draw upon — the president-elect didn’t bring up the case. Rather, according to the official version of events, the two spoke about William Levi, one of Alito’s former clerks, whom Trump is considering for a job in his incoming administration.
Why the president-elect would personally be checking references is unclear.
Given the circumstances, a variety of Democratic officials said Alito had a responsibility to recuse himself before the justices weighed in on Trump’s emergency application. Indeed, Rep. Jamie Raskin, the ranking member on the House Judiciary Committee, argued in a written statement that the far-right jurist “fundamentally misunderstands the basic requirements of judicial ethics or, more likely, believes himself to be above judicial ethics altogether.”
The Maryland Democrat added, “Every federal judge and justice knows he or she must avoid situations such as this. Yet Justice Alito did not. Impartial justice under the Constitution demands that Justice Alito hold himself to the highest ethical standards and avoid even the appearance of impropriety.”
True to form, the justice ignored the pressure and signaled his willingness to give Trump the relief he sought. (Alito was, however, in the minority. A day later, the president-elect was sentenced.)
The controversy surrounding Tuesday’s phone call, however, isn’t over just yet. The New York Times reported that the chat and its timing “flouted any regard for even the appearance of a conflict of interest.” But that wasn’t the only relevant angle to the story:
The circumstances were extraordinary for another reason: Justice Alito was being drawn into a highly personalized effort by some Trump aides to blackball Republicans deemed insufficiently loyal to Mr. Trump from entering the administration, according to six people with knowledge of the situation, who spoke on the condition of anonymity to describe private conversations.
On the surface, it’s a difficult dynamic to understand. The lawyer in question, William Levi, worked with Republican Sen. Mike Lee of Utah on Capitol Hill, clerked with Alito, worked with the Trump transition team, and he’s even the grandson of a legendary former attorney general. What’s the problem?
According to the Times’ report, which has not been independently verified by MSNBC or NBC News, Levi has an unexpected “black mark against his name.”
In the first Trump administration, he served as the chief of staff to Attorney General William P. Barr, who is now viewed as a “traitor” by Mr. Trump for refusing to go along with his efforts to overturn his loss in the 2020 election. … [Levi’s] bid for a permanent position has been stymied by Mr. Trump’s advisers who are vetting personnel for loyalty. … As Mr. Trump puts together his second administration, Mr. Barr is among a handful of prominent Republicans who are viewed with such suspicion that others associated with them are presumptively not to be given jobs in the administration, according to people familiar with the dynamic.
If the Times’ report is accurate, the entire story is getting more bizarre, not less. (Note, none of the relevant players responded to the newspaper’s request for comment.) Time will tell if there are additional developments, but in the meantime, let’s not forget that in June 2016, Bill Clinton exchanged pleasantries on a tarmac with then-Attorney General Loretta Lynch. By all appearances, it was a fairly brief and inconsequential social interaction, and such conversations are not uncommon when prominent political figures are in the same place at the same time. Much of the political world nevertheless treated the chat as a hair-on-fire scandal: The idea was that the former Democratic president might’ve used the opportunity to pressure Lynch, while his wife was facing a federal investigation over her email protocols. There was no evidence that Clinton did anything improper, but a controversy erupted anyway. Helping lead the charge was a guy by the name of Donald Trump. The then-candidate called the Clinton/Lynch interaction “terrible” and “so horrible,” before insisting that this meaningless chat was one of “the biggest” stories of 2016. The future president concluded that the story deserved to be seen as a “massive” controversy. The Republican appears to have far fewer concerns about his chat with Alito.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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