To no one’s surprise, Trump’s lawyer in the Jack Smith January 6 case, John Lauro, has moved for Judge Tanya Chutkan to recuse herself based upon gratuitous statements made during her sentencing of other January 6 defendants.
Fairness and impartiality are the central tenets of our criminal justice system. Both a
defendant and the public are entitled to a full hearing, on all relevant issues, by a Court that has not prejudged the guilt of the defendant, and whose neutrality cannot be reasonably questioned.
This correct, if generic, statement isn’t at issue. Nor does this argue that Judge Chutkan is, in fact, prejudiced, but rather that her neutrality should be above being reasonably questioned. There is no mandatory basis for recusal, such as consanguinity. Rather, the argument is that statements made by the judge give rise to a reasonable question, particularly in the mind of the public, as to whether this judge can and will be fair.
The first of the two statements relied upon by the defense was made at the sentencing of Christine Priola.
This was nothing less than an attempt to violently overthrow the government, the legally, lawfully, peacefully elected government by individuals who were mad that their guy lost. I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb. And the people who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country; and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.
While the “one man” wasn’t at issue during this sentencing, Judge Chutkan nevertheless felt it necessary to not merely mention him, but castigate him and his conduct during the sentencing.
The second statement, which was made prior to the Priola sentence, was during the sentencing of Robert Palmer.
He went to the Capitol because, despite election results which were clear-cut, despite the fact that multiple court challenges all over the country had rejected every single one of the challenges to the election, Mr. Palmer didn’t like the result. He didn’t like the result, and he didn’t want the transition of power to take place because his guy lost. And it is true, Mr. Palmer — you have made a very good point, one that has been made before — 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. I don’t charge anybody. I don’t negotiate plea offers. I don’t make charging decisions. I sentence people who have pleaded guilty or have been convicted. The issue of who has or has not been charged is not before me. I don’t have any influence on that. I have my opinions, but they are not relevant.
Judge Chutkan’s opinions are not relevant to the Palmer sentencing, and yet she voiced them. Judges often do that, expressing gratuitous extra-judicial statements because they can since they sit at the bench. But at that moment, Judge Chutkan had no idea that United States v. Trump would be wheeled out to her courtroom, and her irrelevant expressions of opinion about Trump would suddenly become relevant.
Two points need to be made here. The defense does not argue that Judge Chutkan is biased and cannot perform her function with impartiality. The argument is that, those statements having been made, she will not appear to a cynical and angry public as impartial, thus implicating the “appearance of impropriety” prong for recusal under 28 USC § 455.
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
Have the statements made by Judge Chutkan put her impartiality reasonably in question? Is it sufficient for a reasonable person (an objective standard rather than the subjective standard of a person who would take a bullet for Trump) to doubt Judge Chutkan can put aside any personal feelings she has toward Trump and perform her function as a neutral magistrate?
*Tuesday Talk rules in effect, within reason.
A surprisingly close call. Truth is, unless the case is thrown out by a judge Trump and his minions will claim bias. Most of his angry supporters will agree. Were I cynical, might say the purpose of the motion was to highlight the so called bias for his minions. So for them, it really doesn’t matter.
Similarly, for the hardcore anti-Trumpists, a judge who does not show contempt for Trump and his minions is a Trumper.
Were it me, I would recuse. It looks bad. And much of the case is about making a statement: no one is above the law. She should not have made the statements. Is it technically necessary? No. And she can say so. Someone needs to be the adult and act in a statesman- like manner. It won’t be Trump or his lawyers.
The district’s chief judge should, if possible, reassign the case to a law and order GOP appointee known as no-nonsense in the courthouse.
And where is the Chief Judge going to find a judge who is such a nincompoop that he/she has no opinion on the matter that has dominated the headline for a year and a half?
That is not the standard. The standard is someone who hasn’t made the type of statements that Judge Chutkan made in public – specifically in sentencing January 6 defendants. In addition, it seems prudent to avoid Judges appointed by President Biden. Remember this is about appearances. It is important that we hold former presidents (and people who sit in the Oval Office) to the standards of the law (a President murders someone, the President goes to jail). The substance is about being a nation of laws, not of men or women. The appearance should be as bland as possible.
Nothing will satisfy the Trumper nutters. But the indictments (to a greater or lesser degree) can look (to a casual observer — which is most people) like a response to a banana republic dictator by other authoritarians. What I was trying to suggest is a way to deal with the impressions of the persuadable.
As a “Trump nutter” by association (Marine, retired LE, licensed firearms manufacturer and repair facility specializing in NFA weapons) thank you for what looks to me to be a balanced, cogent and realistic argument. Down in my gut it feels like this case is seminal in that it is a chance for the upper levels of our court system to turn back the perception of fealty to a moneyed political and bureaucratic elite by carefully executing their duties within the parameters of the law. Whether or not that perception is valid I know not. I’m just a dumb groundling. All I know is what I see and digest from the outside looking in.
Not having an opinion would be difficult. Not having expressed an opinion would tend to indicate a discreet and prudent judge who takes his responsibilities seriously.
The import of her remarks was that Trump should have been charged and should not “remain free.” This is an unusually valid point for one of Trump’s legal teams.
Probably he should have been remanded. That would have sent a message to the country. It would have angered Trumpers, but they are already angry and probably unreachable. It might have made people say – what? – and pay attention.
Mark makes a strong argument. The only problem I see is that people often try to create the appearance of bias to get rid of judges they don’t want, and there is a concern that recusing in this case will create the impression that disqualification happens regularly and it’s not a big deal. That will encourage more shenanigans by defedants to try to create problems with judges.
Agree this is a problem. But in my view, balancing the risk against the benefits in this case and as it affects they system of laws and judicial administration of the laws, it probably is worth it. Yes, defendants will try the same thing in multi-defendant cases (and others). They will be brushed away (for the most part – sometimes they are correct). In my view, this case (and the documents and Georgia cases) are about whether we respect the laws and democracy or descend into pure personality rule.
These are odd cases. There is not much question about the facts. The Defendant keeps admitted he did what is charged, but claims it is OK (often because he held a powerful position). Basically, Trump is pushing for public and jury nullification of the laws being applied to him. These seem (to me) to be slam dunk government cases. If the cases get to a jury, it probably will seem so to them. The real issue is the court of public opinion.
Unless and until Justice Thomas’ vote is stricken from every decision that had a scintilla of impact on the considerable interests of his benefactor, there should be no person naive enough to believe courts are anything but a slot machine where the only outcome that matters is whether their interests align with those of the judge assigned.
This motion has almost no chance of succeeding under current controlling SCOTUS precedent, nor should Mr. Trump succeed here.
Controlling SCOTUS opinions provide that the objective inquiry is whether the average judge would reasonably believe that Judge Chutkan displayed an unconstitutional potential for bias; not whether random people on the street would reasonably question her impartiality. See Rippo v. Baker. Plus, the Court has long rejected arguments that statements a judge made in a previous case alone provide a basis for recusal. See Liteky v. US.
Mr. Trump has a long and sometimes sordid history of accusing judges presiding over his cases of bias against him. Recusing Judge Chutkan, who Mr. Trump admits here hasn’t do anything inappropriate, would simply encourage him to further engage in this sort of bullshit. Finally, if Judge Chutkan does, in fact show unconstitutional bias against Mr. Trump in her rulings, then he will have a chance to appeal those.
Given today’s political climate, do we even have a “reasonable person” standard any more?
The judge should just say, “What do you mean Trump? I was talking about Roy Epps,” and then watch all the people arguing fall over themselves in a mad scramble to reverse their positions.
Okay, that will never happen, because of course the judge is biased. It would be really funny, though.