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The Judge in Trump’s Federal J-6 Election Trial Should Recuse Herself, But Probably Won’t

Lawyers for former President Donald Trump have asked the federal judge presiding over his forthcoming trial on charges of trying to overturn the 2020 election to recuse herself.  Washington District Court Judge Tanya S. Chutkan should do so, but likely won’t.

Getting a judge kicked off a case because of bias against the accused is exceedingly rare.  Recusal motions don’t normally succeed since the burden on the defense is quite high, and most judges reject the notion that they harbor personal prejudices, even if they do.  But that doesn’t mean that Trump’s lawyers were without cause to try it.

Some of Judge Chutkan’s past remarks are deeply troubling to the defense attorneys who claim that she has proven she can’t possibly be fair and impartial while overseeing the trial.  They fear that her rulings from the bench will consistently favor the prosecution.  They probably will.

In particular, Trump’s lawyers cite comments Chutkan made in other J-6 cases where, for example, she openly criticized a defendant for having blind loyalty to one person who —quote— “remains free to this day.”  Was she saying that Trump belongs behind bars, despite no trial?  Did she pronounce him guilty in the court of public opinion in a statement that was widely reported?

It certainly sounds like it.  So, this is a serious and legitimate question for the Trump team to raise.  Moreover, Chutkan made other incendiary statements placing blame on the former president for the riots, even though he urged the crowd to behave peacefully on January 6, 2017.  She further implied that Trump incited an insurrection despite the fact that he has not been charged with such an offense because there is no evidence to support it.

The legal standard for disqualification is whether a reasonable person would have doubts about the judge’s ability to be objective and neutral.  Is there a personal bias that would prevent the fair administration of justice?  Has Chutkan prejudged Trump’s case and consciously or unconsciously preordained the outcome with adverse rulings that she may be prone to make?  It seems so.  On this basis alone, she should step aside.

However, the greatest obstacle for the defense is the person who will decide the motion to recuse —the judge herself.  Chutkan sits in judgment of herself, which is a glaring conflict of interest.  Put another way, an allegedly biased judge is being asked to recognize her own bias that she may not discern.  So, what’s to prevent her from issuing a prejudicial ruling in her own favor on the issue of prejudice?  Nothing, really.

The other part of this is “perception.”  Because of Chutkan’s statements, will the public now view the case as “tainted” because the judge was exposed pre-trial as unfair?  If Americans are to have confidence in important trials, the people must believe that her Honor was dispassionate and unbiased —not passionately driven by personal bias.

Trump’s defense team is claiming that Judge Chutkan is undermining the public’s trust.  The lawyers cited case law to support it.  “What matters is not the reality of bias, but it’s appearance,” they argued in their brief.

The four indictments of Donald Trump are already perceived by many to be politically driven.  Public opinion polls bear that out.  85% of Republicans think Trump should not be prosecuted, according to a national poll from Quinnipiac University.

The chosen venues make matters worse.  In the Washington DC trial, the jury pool will be composed of people who almost certainly despise the former president and voted overwhelmingly against him.  This puts his Constitutional “right to an impartial jury” under the Sixth Amendment in obvious jeopardy.

Americans are deeply divided over the criminalization of political disputes and unequal justice.  A neutral judge and an impartial jury might not resolve that division, but at least it would be a valued step in the direction of fairness in our system of justice.