Supreme Court Justice Alito urged to step off Trump election case over U.S. flag controversy

Associate Justice Samuel Alito poses during a group photo of the Justices at the Supreme Court in Washington, April 23, 2021.

Erin Schaff | Pool | Reuters

The chair of the Senate Judiciary Committee on Friday urged Supreme Court Justice Samuel Alito to recuse himself from considering cases related to the 2020 election, including the question of former President Donald Trump’s immunity from criminal prosecution, because of controversy over an upside-down U.S. flag that flew outside Alito’s home more than a week after the Jan. 6, 2021, riot at the U.S. Capitiol.

Judiciary chair Dick Durbin, D-Ill., and others suggested that Alito was adding to ethical concerns about the court after The New York Times report on Thursday revealed that the flag was displayed in that manner outside his Virginia home on Jan. 17, 2021, days before President Joe Biden was due to be sworn into office.

Alito told the Times his wife, Martha-Ann Alito, hung the flag upside-down after a confrontation with a neighbor after the election, which Trump has falsely claimed to have won.

Trump supporters who argued that he won the 2020 election displayed the flag in that manner during protests and rallies after the contest.

“Flying an upside-down American flag — a symbol of the so-called ‘Stop the Steal’ movement — clearly creates the appearance of bias,” said Durbin.

“Justice Alito should recuse himself immediately from cases related to the 2020 election and the January 6th insurrection, including the question of the former President’s immunity in U.S. v. Donald Trump, which the Supreme Court is currently considering,” Durbin said in a statement.

“The Court is in an ethical crisis of its own making, and Justice Alito and the rest of the Court should be doing everything in their power to regain public trust.”

Later Friday, the advocacy group Citizens for Responsibility and Ethics in Washington said the hanging of the flag at the Alito home calls into question his objectivity in a recent Supreme Court decision that overturned a Colorado high court ruling that banned Trump from that state’s election ballot this year due to his incitement of the Capitol riot.

“This appears to be a staggering ethical violation and calls into question Justice Alito’s objectivity in Trump v. Anderson and other cases,” said CREW President Noah Bookbinder, using the name of the Colorado case.

“Justices are supposed to avoid even the appearance of bias,” Bookbinder said. “We don’t know exactly who put the flag up, but we know that it remained there for days. Not only did Justice Alito fail to avoid the appearance of bias, he also spent years ruling on cases pertaining to the 2020 election and the attack on the Capitol despite having made a public display of apparent affinity with those who sought to overturn democracy as we know it.”

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Alito in an emailed statement to The Times said, “I had no involvement whatsoever in the flying of the flag.”

“It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs,” Alito said.

A Supreme Court spokeswoman did not immediately respond to a request for comment from CNBC on Friday.

The Supreme Court is expected to soon rule on Trump’s claim that he is immune from prosecution in a federal case in Washington, D.C., in which he is charged with crimes related to his attempt to undo President Joe Biden’s victory in 2020 over Trump.

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