Sam Alito Offers Flimsy Excuse For Conversation With Donald Trump

Donald Trump just asked the Supreme Court to intervene in his New York state criminal case and extend its newly expanded presidential immunity just a little further to cover illegally concealing a hush money scheme to pay off an adult film star before he ever became president. A matter of hours before that case — number 666 because you cannot make this stuff up — arrived at the Court, Trump had a phone conversation with Justice Sam Alito.

You know, just the kind of light-hearted catch-up you have with your bros right before asking them to suspend the criminal code for you.

In his remarks about the call, Alito puts a lot of weight on the fact that it took place before Trump filed his application. Alito seems to think this means he had no way of predicting a potential conflict when all it really seems to say is “Trump decided this was worth filing after checking in on Alito.”

While the emergency filing over the NY case hadn’t hit the docket yet, Trump already had business before the Court with his half-baked effort to halt the planned TikTok ban from going into effect, presumably so he can try to exact some sort of personal vig from the company. But since Alito doesn’t think it’s a problem to go on a vacation with litigants with business before him, a telephone call with a litigant certainly wouldn’t raise any flags for him.

And we know his thoughts on flags.

“William Levi, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position,” Justice Alito told ABC News. “I agreed to discuss this matter with President-elect Trump, and he called me yesterday afternoon.”

On the one hand, an employer checking references is a reasonably innocuous explanation. On the other hand, this might be the least believable excuse Alito could have cooked up.

Levi almost certainly came up during the call. He might’ve even been the subject superficially the whole time. But it’s a special kind of gullible to believe this call wasn’t really about Trump’s legal interests. “No one is questioning Levi’s credentials, which are as good as can be,” says Fix the Court’s Gabe Roth. “The call was merely an excuse for Trump to speak with one of the nine people determining the fate of his hush money sentencing in the coming days and who will review many more Trump-related issues over the next four years.” It’s also unnecessary when Alito could’ve responded to the ethically fraught request with a letter explaining why he couldn’t take the call but reaffirming his faith in his former clerk.

The call makes even less sense when you consider that Trump’s barely vetting his cabinet secretaries. Trump didn’t feel the need to check Matt Gaetz’s public Venmo feed but feels the need to personally check references on whatever middling job he’s giving Bill Barr’s former chief of staff? Industrial-grade credulity cannot hold up to this kind of strain.

Alito claims the conversation never strayed into Trump’s upcoming Supreme Court cases. There’s no record of what transpired on the call, but we should totally take him at his word. It’s not like he said in 2023 that he barely knew Paul Singer, the billionaire litigant giving him a free private plane trip, even though back in 2009, ABOVE THE LAW contemporaneously reported on an event where Alito was introduced by his personal friend… Paul Singer. I mean, a guy who tried to mislead the public on such an easily checked matter like that would be a thoroughly unreliable narrator about his own ethical issues!

Trump wanted to take Alito’s temperature — directly or indirectly — and found a justice more than willing to comply with this request. Alito should recuse himself from Trump’s case given this revelation about his stunning lack of judgment. But he won’t because while the Trump v. United States opinion is reported as a 6-3 supermajority providing necessary slack for Alito to sit out and still deliver for “the Boss,” it’s not so simple. Trump’s attack on the New York criminal case arises — in part — from the section of the Trump opinion suggesting unofficial acts can earn immunity if any of the evidence involves an official act and Trump’s arguing that testimony from White House aides about what he did after the fact with the crime that took place before becoming president should nix the whole case. And on that issue, Amy Coney Barrett refused to hop aboard, making it much closer to a 5-4 question.

If the Chief Justice wants the public to regain faith in the legitimacy of the courts, this might be a good place to start. Even assuming an entirely innocent phone call this time — a big ask — if Alito hears this case, it establishes a precedent for Trump to have private chit-chats with the justices with no consequences. The risk of mischief is extraordinary.

This is where that whole “avoid the mere appearance of impropriety” thing would come into play. Except this Court reads that classic maxim a little differently these days: merely avoid the appearance of impropriety.

[UPDATE: I hastily wrote “Peter” Singer in the first draft, apparently confusing billionaire Paul Singer with bioethicist and moral philosopher Peter Singer which probably says something but I’m not sure what it is.]

Trump speaks with Justice Alito amid push to halt criminal sentencing [ABC News]

Earlier: Sam Alito Laments It’s Getting So You Can’t Take All-Expense Paid Luxury Vacations Funded By Billionaires Anymore
Donald Trump Demands SCOTUS Do Him A Favor Though

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.