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With Chutkan, Trump faces high recusal bar he’s unlikely to clear

Don’t expect the former president’s motion to kick the judge off his election interference case in D.C. to succeed.


Trying to kick U.S. District Judge Tanya Chutkan off his election interference prosecution in Washington, Donald Trump cited remarks she made when sentencing other Jan. 6 defendants as proof of partiality against him. But as the cases cited in the former president’s motion show, previous situations in which judges were disqualified have required more than Chutkan has done here, so don’t expect the motion to succeed.

First, what remarks are we talking about?

Trump points to comments Chutkan made during sentencings of lower-level Jan. 6 defendants. In one case, she mentioned “a blind loyalty to one person who, by the way, remains free to this day.” In another, she said the defendant had 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,” and she added: “I have my opinions, but they are not relevant.”

Trump argues Chutkan thus shouldn’t preside over his case under federal law 28 U.S.C. § 455(a), which says a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The former president’s legal team argues the word “might” in the statute “counsels a low threshold, requiring disqualification if any reasonable citizen could question a judge’s impartiality, even if some do not.”

But it’s not a low threshold. Trump should be thankful for that, because a reasonable reader would likely wonder how this argument would apply to Judge Aileen Cannon presiding over his Florida case. (As I’ve explained, relevant precedent wouldn’t require her recusal to date.)

Getting to the questionable conduct cited by Trump in two cases taken up by the U.S. Court of Appeals for the District of Columbia Circuit, the instances involved judges’ behavior outside of court, rather than comments made on the bench. Trump’s motion doesn’t address the facts of these cases, but doing so helps to understand why they don’t help him.

Take the antitrust case of United States v. Microsoft, where the D.C. Circuit disqualified the trial judge. Importantly, the appeals court — which governs Chutkan and her trial court colleagues — said it wasn’t just the fact that the judge made “crude characterizations of Microsoft” and “frequent denigrations of Bill Gates,” because even those might not have required recusal had the judge made the comments from the bench. Rather, the problem was that the judge made those statements in interviews with reporters “outside the courtroom, in private meetings unknown to the parties, in anticipation that ultimately the Judge’s remarks would be reported.” 

Trump’s motion doesn’t address the facts of these cases, but doing so helps to understand why they don’t help him.

Similarly, in a Guantanamo terrorism case cited by Trump, the military judge applied for a job as an immigration judge within the Justice Department, without disclosing the application to the defense. The D.C. Circuit concluded that the judge’s job application “created a disqualifying appearance of partiality.”

Again, that’s not the situation in Trump’s case. Had a judge recused themself or been disqualified in an analogous case to his own, one imagines that Trump’s lawyers would have led with that in their motion. The fact that they didn’t doesn’t mean he’ll lose, but it further suggests why he won’t win. 

The government’s opposition filing is due by Thursday, and Trump can respond with a reply filing within three days from that, so we might get a decision from Chutkan next week.