Justice Alito Must Be Forced Out of Trump Immunity Case: Professor

Justice Samuel Alito should be disqualified from hearing Donald Trump's immunity case because of a seemingly pro-Trump flag that was hanging outside his house, a law professor has said.

The New York Times revealed that Alito, a Supreme Court justice, had an upside-down American flag, a symbol of the then president's "Stop the Steal" campaign, hanging outside his house in the days before Joe Biden's inauguration in 2021.

Alito, who was nominated by Republican President George W. Bush, said in a statement that his wife had flown the upside-down U.S. flag in response to "personally insulting" political signs hung by a neighbor near Alito's home in Alexandria, Virginia.

The upside-down American flag, a nautical distress signal, was used by Trump supporters to symbolize their false claim that Biden had stolen the 2020 presidential election. The flag at the Alito home was seen flying 11 days after Trump supporters rioted at the U.S. Capitol on January 6, 2021, in an effort to stop Congress from certifying Biden's win.

Newsweek reached out to Alito and Supreme Court Chief Justice John Roberts via email for comment on Monday.

Peter Shane, a constitutional law professor at New York University, told Newsweek that Alito will not step away from the Trump case and will have to be forced to do so.

"Alito seems to believe so strongly in his own integrity that I don't expect a voluntary recusal. If a justice appointed by a Democratic president flew a protest flag while the 2000 Florida recount was in process...the stories would be the centerpiece of right-wing cable programming for at least a year," Shane said.

The Supreme Court is considering Donald Trump's criminal immunity case. The case will decide whether Trump should face criminal trial for allegedly trying to interfere with the result of the 2020 presidential election. Trump's lawyers argue that his actions were within his presidential powers and that he, therefore, has presidential immunity from prosecution.

The election interference case is before a federal judge in Washington, D.C. It has been suspended until the Supreme Court rules on Trump's immunity.

Shane said that the flag would be considered to be symbolic political speech.

"Flying a flag to protest the supposed theft of the 2020 election amounts to speech on behalf of a political candidate, which is prohibited by the Code of Conduct that the Supreme Court adopted for itself last November," he said.

"It raises a reasonable question as to a Justice's impartiality in a case to which Trump is a party, which would require disqualification under the new Supreme Court code."