The Mrs. defense: powerful men blaming their wives

Analysis by Zachary B. Wolf, CNN

(CNN) — Supreme Court Justice Samuel Alito doesn’t deny there was an upside-down American flag flying outside his house days before Joe Biden was sworn in as president, an apparent distress signal that would seem to express sympathy with the plight of Donald Trump supporters who refused to believe their guy lost the 2020 election.

But Alito did offer an excuse for the flag, which had become a symbol of the “Stop the Steal” movement before and after the election.

“I had no involvement whatsoever in the flying of the flag,” Alito said in a written statement to The New York Times, which first reported the story. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

So the wife did it to get back at the neighbors. Her first name is Martha-Ann, by the way.

A Supreme Court justice being unmasked as having a partisan tilt wouldn’t be illegal – just awkward and icky. Alito won’t even have to recuse himself from any cases for possibly showing an electoral preference since there’s no binding code of ethics for Supreme Court justices. He clarified on May 29 in a letter to lawmakers that he would not recuse himself from any cases as a result of the flag controversy. His wife, Alito said, is entitled to her First Amendment rights.

“My wife is fond of flying flags,” Alito wrote. “I am not.”

And the Alito flag incident is small time compared with the direct involvement of Justice Clarence Thomas’ wife Ginni in the “Stop the Steal” rally on January 6, 2021, and her active texting with officials in the White House about how to overturn election results – something for which Thomas has not offered excuse, apology or recusal.

But the “Mrs. defense” could be used in much more serious matters than flag flying.

Menendez ‘in the dark’

Take the prosecution of Sen. Bob Menendez, the New Jersey Democrat on trial in New York for federal bribery charges. Menendez’s trial is severed from one of his co-defendants, his wife, Nadine. Both Mr. and Mrs. Menendez deny wrongdoing, but at the outset of his trial this month, it seemed likely that one element of his defense could be to blame his wife.

The senator was “in the dark” on money matters, his attorney told jurors.

Most of the communication referenced in the indictment is between Nadine Menendez and the New Jersey businessmen who are alleged to have coughed up gold bars and envelopes of cash, along with much more, as they sought Sen. Menendez’s help.

Couples behaving badly

Former Rep. Duncan Hunter, a California Republican, pioneered the Mrs. defense when he and his wife were both accused of funneling campaign funds for private use. Hunter’s defense was that his wife, Margaret, handled the finances in their personal lives and for his campaign.

Both Hunters ultimately pleaded guilty and were later pardoned by Trump.

Will it ultimately be a similar story in the prosecution of Rep. Henry Cuellar, a Texas Democrat, who has been charged in a bribery scheme along with his wife, Imelda? The Cuellars present a united front and deny all wrongdoing. Prosecutors allege payments to the couple were laundered through “sham consulting contracts” made to “front companies” owned by Mrs. Cuellar.

Couples behaving badly is nothing new in US politics. Former Rep. Jesse Jackson Jr., an Illinois Democrat, and his wife, Sandra, pleaded guilty to misusing campaign funds to fuel a lavish lifestyle.

Variations on the theme

Former Virginia Gov. Bob McDonnell and his wife, Maureen, were convicted of public corruption in 2014. Their strategy at trial was to portray the former Republican governor as being in the dark about his wife’s activities. A unanimous US Supreme Court, including Alito, later vacated the governor’s conviction and narrowed the scope by which prosecutors can pursue bribery allegations.

The Mrs. defense could conceivably be turned on its head and used by a powerful woman to blame her husband. Rep. Cori Bush, a Missouri Democrat, is under investigation for misusing funds to pay her husband for security services.

Bush said in a statement that she retained her husband’s security services “because he has had extensive experience in this area, and is able to provide the necessary services at or below a fair market rate,” according to CNN’s report.

Wives taking the blame, sometimes deservedly, is not a uniquely Washington problem. In April, an Iowa woman named Kim Taylor was sentenced to eight months in prison, according to local reports, for an unsuccessful ballot stuffing scheme to help her husband in a Republican congressional primary. The husband, Jeremy Taylor, was not charged and was later elected to the Woodbury County Board of Supervisors.

Alito has strong views about marriage

Blaming his wife for flying an inappropriate flag is not the only reason Alito is connected to a wider discussion of the institution of marriage.

He continues to complain about the Supreme Court’s 2015 decision that granted the right of marriage to same-sex couples. He grouses that the court’s blessing of same-sex unions means people who think marriage should be between a man and a woman can be labeled by the government as “bigots.”

This story has been updated with additional information.

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