As the January 6 committee mulls over whether to subpoena Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, vice-chair of the committee Rep. Liz Cheney, hopes Thomas will appear without having to be subpoenaed. The committee is, however, prepared to subpoena her if necessary.

“We certainly hope that she will agree to come in voluntarily,” Cheney said in an interview with 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 come to that.”

Cheney may be being overly optimistic about this. It’s pretty likely Thomas won’t testify without a subpoena. But there’s another problem to consider, said former Watergate prosecutor Jill Wine-Banks. She noted that the panel may have to subpoena her and if that happens, Clarence Thomas could cite spousal privilege in order to prevent him from having to testify against her, Newsweek reports.

“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? Will Justice Thomas not recuse and invent spousal [privilege]?”

Ginni Thomas has much relevant information and no exemption from the duty of any citizen to testify. 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 privil? https://t.co/ncnSP4xrCA

— Jill Wine-Banks (@JillWineBanks) July 24, 2022

Ginni Thomas has spoken repeatedly about her hopes of overturning the 2020 presidential election in favor of Donald Trump and as a result, there have been calls to subpoena her, especially since she’s married to a Supreme Court Justice who may have influence over court decisions regarding elections.

When it was revealed that Ginni Thomas had extensive communications with Mark Meadows, Trump lawyer John Eastman, and numerous Arizona lawmakers about overturning the 2020 election results, Clarence Thomas received heavy criticism for being the sole dissenting vote when the Supreme Court refused to block Donald Trump’s attempt to prevent the release of a spate of documents to the January 6 committee.

If you’re wondering what spousal privilege is, I’m including a brief description here. It’s a legal term that states two married people cannot be forced to testify against each other in a criminal trial or in front of a grand jury or during civil proceedings, Newsweek reports, adding:

“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.”

And of course, if this privilege is invoked, it can, in fact, prohibit one spouse from testifying against the other even if they receive a subpoena. So yes, that means Clarence Thomas could use this if he is subpoenaed to testify before the January 6 panel.

And because the January 6 panel isn’t conducting a criminal investigation, this means there are fewer exceptions to block the use of spousal privilege.

It wouldn’t be the least bit surprising if Clarence Thomas invoked spousal privilege to prevent private and confidential conversations between himself and his wife from being revealed. And of course, that means he may not be forced into discussing whether Ginni Thomas revealed anything to him regarding her support for overturning the election.

Hopefully, Clarence Thomas won’t do this, although that’s very unlikely, he’ll almost certainly recuse his wife. Still, I can’t help but think that since so much information has been released that the panel has enough to conclude its findings. And then it will be Merrick Garland’s turn to do the right thing.