Clarence Thomas Could Use Spousal Privilege to Stop Jan. 6 Committee—Lawyer

Supreme Court Justice Clarence Thomas could use spousal privilege in order to prevent him from having to testify against his wife, Ginni Thomas, to the January 6 House Select Committee, a legal expert has suggested.

There have been calls for the panel investigating the Capitol riot to subpoena Ginni Thomas after she frequently spoke of her desire to overturn the 2020 election results from Joe Biden to Donald Trump, especially because she is married to a Supreme Court justice who could have influence over election-related decisions by the court.

Following revelations about his wife's communications with Mark Meadows, Trump lawyer John Eastman, and several Arizona lawmakers about overturning the 2020 Election results, Clarence Thomas was criticized for being the sole dissenting vote when the Supreme Court rejected Trump's attempt to block the release of some presidential documents to the January 6 panel.

Clarence Thomas subpoena
Supreme Court Justice Clarence Thomas sits with his wife and conservative activist Virginia Thomas while he waits to speak at the Heritage Foundation on October 21, 2021 in Washington, DC Drew Angerer

Representative Liz Cheney, the vice-chair of the January 6 Committee, suggested that the committee may subpoena Ginni Thomas for evidence if she does not voluntarily speak with them.

"We certainly hope that she will agree to come in voluntarily," Cheney told CNN's State of the Union. "But the committee is fully prepared to contemplate a subpoena if she does not. I hope it doesn't get to that."

Reacting to Cheney's comments, attorney and former Watergate prosecutor Jill Wine-Banks suggested that the panel may have to subpoena Ginni Thomas, and that Clarence Thomas could cite spousal privilege in order to prevent him from having to testifying against her.

"Ginni Thomas has much relevant information and no exemption from the duty of any citizen to testify," Wine-Banks tweeted. "But, how many of you think she'll do it without a subpoena? In fact, how many of you think she'll do it with a subpoena? Will Justice Thomas not recuse and invent spousal [privilege]?"

Ginni Thomas has so far refused calls for her to voluntarily speak to the committee.

What is Spousal Privilege?

Spousal privilege is a legal term meaning that two married people cannot be forced to testify against each other in a criminal trial or in front of a grand jury or civil proceedings.

There are some exceptions as to when the privilege can be invoked, such as if one spouse is accused of a crime against the other one, the crime involves one of their children, or they need to provide evidence about matters or incidents from before they were married.

This privilege also prevents one spouse from testifying against the other even when compelled through a subpoena, meaning Clarence Thomas could use it if he is subpoenaed to testify as part of the January 6 congressional investigation.

The fact that the January 6 House Select Committee is not conducting a criminal investigation means that are fewer exceptions to block the use of spousal privilege.

Clarence Thomas could invoke spousal privilege to avoid revealing private and confidential communications between he and his wife—meaning he might not be forced into revealing whether Ginni Thomas has discussed with him her support for overturning the election results.

Newsweek has reached out to the Supreme Court for comment.