Former President Donald Trump on Monday filed a deeply flawed motion to disqualify D.C. federal District Court Judge Tanya Chutkan. She is the jurist randomly assigned to preside over his March 4 trial for criminally conspiring to overturn the 2020 election.
Recusal is a move Trump has tried before and lost. It’s one he will lose again.
Judge Chutkan is a seasoned, even-handed trial judge, confirmed by a 95-0 Senate vote in 2014. Because, in Trump’s skewed worldview, she is not going to be for either side, she’s not for him so she’s against him.
This is nothing more than recusal recidivism. Let’s review his “priors.”
In 2016, Trump said he couldn’t get a fair trial from Judge Gonzalo Curiel in the civil fraud case against Trump University. He told CNN’s Jake Tapper, “Now, this judge is of Mexican heritage. I’m building a wall, OK? I’m building a wall. … I think he should recuse himself.”
Note the subsequent irony — and the falsity of Trump’s perceived judicial victimhood. In 2018, Curiel ruled that the Trump administration could proceed to build the wall by waiving environmental rules that stood in the way.
In February 2020, Trump called on Supreme Court Justices Ruth Bader Ginsburg and Sonia Sotomayor to disqualify themselves in any case involving Trump.
Moving to Trump’s current criminal jeopardy, in August, Trump’s recusal motion aimed at New York state court Judge Juan Merchan failed. Merchan is presiding over the “hush money” case, in which a Manhattan grand jury indicted Trump in March.
In the New York recusal motion, Trump wildly claimed, among other things, that Merchan’s prior involvement in the plea and sentencing of Allen Weisselberg, the Trump Organization’s chief financial officer, showed a “preconceived bias against Trump.”
I guess you really can’t teach an old dog new tricks. Last month, John Lauro, Trump’s experienced lawyer in the D.C. case, tried. On Aug. 8, when Trump publicly floated the idea of seeking Judge Chutkan’s recusal, Lauro quickly walked it back. He said that “as lawyers we have to be very careful of those issues and handle them with the utmost delicacy.”
Perhaps “utmost delicacy” is not the strong suit of the guy calling the shots.
Side bar: Note that Jack Smith has filed no motion to recuse Judge Aileen Cannon in the Mar-a-Lago obstruction and national security case. Many legal experts’ only explanation for her ruling in a prior phase of the case was that she was “in the tank” for Trump, who appointed her.
Practiced trial lawyers know you’d better have an open and shut case of bias before filing motions that call a court’s fairness into question. Trump doesn’t have that kind of claim in D.C.
Judge Chutkan has no conflict of interest like the ones in the primary case Trump’s motion cites. There, a military judge ruled against an Islamic terrorist.
It turned out that the judge did so while applying for a position for which the attorney general had the appointment power. The Justice Department was part of the prosecution in the terrorist’s case over which the military judge was presiding. There’s no allegation against Judge Chutkan of anything similar
Then there are Trump’s accusations of “bias” purportedly reflected in opinions that Judge Chutkan expressed in sentencing Jan. 6 insurrectionists.
But the law is clear: “Opinions held by judges as a result of what they learned in earlier proceedings,” the Supreme Court ruled in 1994, are “not subject to deprecatory characterization as ‘bias’ or ‘prejudice.’”
“If the judge did not form judgments of the actors in those court-house dramas called trials,” the Court observed, she “could never render decisions.”
Trump’s motion cites nothing more than such judgments expressed in sentencing two January 6 defendants. In one, Judge Chutkan made this statement to Robert Palmer, who had assaulted police during the Capitol siege: “You have made a very good point — that the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged. That is not this court’s position.” Chutkan added, “I have my opinion, but that is not relevant.”
Moreover, Trump’s D.C. indictment is not even about the violent insurrection in which Palmer participated. Rather, the case alleges Trump’s role in the failed conspiracy leading up to the attempt to interfere with the congressional certification of President Biden’s victory.
Trump’s recusal motion was surely not filed with any sense that it would prevail in the district court. It’s for his base, just one more way of undermining their trust in the judiciary in the likely event he gets convicted.
Destruction of the rule of law is the goal of the man who would be king. All who value it should work to prevent his 2025 coronation.
Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy.
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