Rep. Alexandria Ocasio-Cortez, D-N.Y., demanded the Democrat-controlled Senate investigate reports that a flag associated with the Jan. 6, 2021, riot at the Capitol was flown at Supreme Court Justice Samuel Alito’s home. 

In an interview on MSNBC’s “All in with Chris Hayes” on Wednesday, Ocasio-Cortez described the reports as “an extraordinary breach of not just the trust and the stature of the Supreme Court, but we are seeing a fundamental challenge to our democracy.” She said that Congress did not have to wait to take action against Alito until Democrats had a majority in the House. 

“Samuel Alito has identified himself with the same people who raided the Capitol on Jan. 6, and is now going to be presiding over court cases that have deep implications over the participants of that rally,” the progressive “Squad” member said. “And while this is the threat to our democracy, Democrats have a responsibility for defending our democracy. And in the Senate, we have gavels.”

“There should be subpoenas going out. There should be active investigations that are happening,” Ocasio-Cortez said. “And I believe that when House Democrats take the majority, we are preparing and ensuring to support the broader effort to stand up our democracy. But I also believe that when Democrats have power, we have to use it. We cannot be in perpetual campaign mode. We need to be in governance mode, we need to be in accountability mode with every lever that we have. Because we cannot take a Senate majority for granted, a House majority for granted or a White House for granted.” 

The New York Times reported on Wednesday that a second flag of a type carried by rioters during the riot at the U.S. Capitol on Jan. 6, 2021, was displayed outside a house owned by Alito. 

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An “Appeal to Heaven” flag was flown outside Alito’s beach vacation home last summer. An inverted American flag — another symbol carried by rioters — was seen at Alito’s home outside Washington less than two weeks after the riot at the Capitol. 

News of the upside-down American flag sparked an uproar last week, including calls from high-ranking Democrats for Alito to recuse himself from cases related to former President Trump.

Alito and the court have not commented on the “Appeal to Heaven” flag. Alito previously said the inverted American flag was flown by his wife amid a dispute with neighbors, and he had no part in it.

The white flag with a green pine tree was seen flying at the Alito beach home in New Jersey, according to three photographs obtained by the Times. The images were taken on different dates in July and September 2023, though it was not clear how long it was flying overall or how much time Alito spent there.

Supreme Court Justice Samuel Alito Jr., left, and his wife Martha-Ann Alito, pay their respects at the casket of Reverend Billy Graham at the Rotunda of the U.S. Capitol Building in Washington, Feb. 28, 2018.  (AP Photo/Pablo Martinez Monsivais, File)

The flag dates back to the Revolutionary War, but in more recent years it has become associated with conservatives, Christian nationalism and support for Trump, according to the Times.

It was carried by some rioters fueled by Trump’s “Stop the Steal” movement. 

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Republicans in Congress and state officials have also displayed the flag. House Speaker Mike Johnson, hung it at his office last fall shortly after winning the gavel. A spokesman said the speaker appreciates its rich history and was given the flag by a pastor who served as a guest chaplain for the House, according to the Associated Press. 

Crowds arrive for the “Stop the Steal” rally on January 6, 2021, in Washington, DC. An “Appeal to Heaven” flag is seen being flown by a supporter. (Spencer Platt/Getty Images)

Alito is taking part in two pending Supreme Court cases associated with Jan. 6: whether Trump has immunity from prosecution for his efforts to overturn the 2020 election results and whether a certain obstruction charge can be used against rioters. He also participated in the court’s unanimous ruling that states cannot bar Trump from the ballot using the “insurrection clause” that was added to the Constitution after the Civil War.

There has been no indication that Alito would step aside from the cases. 

Another conservative on the Supreme Court, Justice Clarence Thomas, also has ignored calls to recuse himself from cases related to the 2020 election because of his wife Virginia Thomas’ support for efforts to overturn the 2020 election results.

Judicial ethics codes focus on the need for judges to be independent, avoiding political statements or opinions on matters they could be called on to decide. The Supreme Court had long gone without its own code of ethics, but it adopted one in November 2023 in the face of sustained criticism over undisclosed trips and gifts from wealthy benefactors to some justices. The code, however, lacks a means of enforcement.

The Associated Press contributed to this report. 

After 20 days, 22 witnesses and intermittent courtroom fireworks, the evidence in Donald Trump’s New York hush money trial is all in. The case will soon be in the hands of the jury.

Who holds the advantage at this critical juncture? My assessment, after attending much of the trial in person, is that it’s the prosecution’s case to lose.

With the standing caveat that it takes only one juror to block a unanimous guilty verdict — and that the law puts the greatest burden on prosecutors — the case as it has come in puts the district attorney’s office in the driver’s seat going into next week’s closing arguments.

The prosecution’s essential achievement was to provide a compelling, credible narrative that points toward only one plausible conclusion: that Trump is guilty as charged.

The defense, by contrast, took a scattershot approach focused on undermining the credibility of any and all of the prosecution’s witnesses, particularly Michael Cohen, Trump’s former attorney and fixer. But what Trump’s lawyers didn’t do is provide a counternarrative, a story compelling enough to leave jurors with a reasonable doubt as to which explanation of the facts is true.

Providing such a competing story isn’t the defense’s legal obligation, of course. The judge will instruct the jurors that if they have any reasonable doubt about the prosecution’s case, they should vote to acquit.

But my experience as a trial lawyer suggests a difference between freestanding doubt about one or more witnesses and a broader doubt about the rationale behind the charges — an alternative plotline that jurors might find believable. That’s the kind of defense being presented on behalf of Sen. Robert Menendez, for example, who is arguing that his wife is the guilty party.

From the first day of testimony, the prosecution has presented a tight, persuasive tale. It begins with an August 2015 meeting involving Trump, Cohen and tabloid executive David Pecker — who explained it to the jury from the stand — in which the parties agreed on a scheme to smother negative stories about Trump.

And sure enough, before the next year’s election, a series of scandal-mongers required neutralizing to insulate Trump from political damage. These episodes are akin to Acts II and III of the script, falling into place along the tracks that the Pecker testimony laid.

Hope Hicks’ testimony was brief but powerful given her longtime loyal service to Trump and her obvious candor notwithstanding her reluctance to harm her former boss, which seemed to cause her to break into tears. She confirmed in dramatic terms that Cohen and Allen Weisselberg, the Trump Organization’s then-chief financial officer, would not have cooked up the scheme to pay off the adult-film actor Stormy Daniels without Trump’s say-so.

The prosecution effectively corroborated in advance most of what would come from its last and most important witness, Cohen. At the same time, the prosecutors encouraged their own witnesses to disparage Cohen, lowering expectations before he took the stand.

When he did, Cohen was low-key, responsive and agreeable. With a few exceptions, he accepted the insults the defense served up, accounting for most of the discrepancies in his story by explaining that he had been telling the truth since he left the Trump fold.

A couple of low points in Cohen’s testimony got a lot of attention, and it’s natural for the media to zero in on dramatic moments. But the jury is more likely to evaluate the evidence in the context of the whole narrative and a witness’ general comportment.

Most important, jurors, like all of us, make overall judgments about credibility, which is the heart and soul of the jury system. Taking the measure of the people before them, they decide whether their accounts are basically trustworthy, notwithstanding the defects of the messengers. And all the stories in this case — not just Cohen’s but those of other flawed witnesses such as Pecker and Daniels — cohere and ring true.

It follows that the impertinence of Robert Costello, a defense witness who muttered in disagreement with Judge Juan M. Merchan’s rulings, probably caught the jury’s attention more than the flaws in Cohen’s largely even presentation — especially once Merchan forcefully rebuked Costello’s buffoonish grandstanding.

The prosecution’s cross-examination of Costello and redirect of both Cohen and Daniels were crisp, clear, textbook demolitions of the defense’s points. Trump’s team was more meandering and given to stray potshots, missing more than they hit.

I think the defense still has one largely overlooked escape hatch: the arcane legal instructions for deciding the felony charges. The charges require the prosecution to prove that Trump caused the alleged falsification of documents to further another crime. Prosecutors have offered up three different candidates for that other crime, each of which has flaws. I could see the jury, which includes two lawyers, considering the legal instructions very carefully and finding that the district attorney came up short. And in any event, the issue is sure to figure in an appeal.

But any appeal feels a millennium away. By the time that transpires, Trump will either be president, giving him extensive options for evading accountability, or a losing candidate facing three other criminal trials. This trial looks increasingly likely to be the only opportunity for a jury to decide for the first time whether a former president is a criminal. Going into the final act, I like the chances that he will be found guilty.

Harry Litman is the host of the “Talking Feds” podcast and the Talking San Diego speaker series. @harrylitman