Dear Reader,

Donald Trump wants to get the heck out of DC. He almost certainly won’t succeed, but you can understand why. He also wants to ditch his judge. That effort is virtually certain to fail as well, but again: he’s not out of line with the request. 

I’m making a new rule, for the sanity of all of us: whenever we discuss any of the four pending Trump indictments, we’ll take a moment first to orient ourselves. There’s just so much to track, and no human being can be expected to have it all at the ready; I do this for a living, and sometimes I have to pause and think to myself, “Ok now, wait, which one is this again?” To that end: here we are talking here about Trump’s federal indictment, brought by DOJ Special Counsel Jack Smith, for his effort to steal the 2020 presidential election. Judge Tanya Chutkan is presiding, and she has set a trial date for March 2024. Got it? Good. Me too. Let’s go. 

Trump has formally filed a motion asking Judge Chutkan to recuse herself from his case. (Recusal motions typically go, in the first instance, to the very judge whose recusal the party seeks  – which can be a bit, well, awkward.) Trump’s lawyers wisely chose not to mimic his wild public attacks on the Judge – she’s a hopelessly partisan Obama-appointed hack, and the rest of the predictable, tiresome bluster. Instead, Team Trump has taken a pointed but appropriate legal tack. They confine their arguments to Judge Chutkan’s own words, on the record during her handling of prior criminal cases of January 6 defendants, and they argue that her statements about Trump’s culpability would create at least an appearance of bias sufficient to require her removal. 

Trump’s lawyers specifically point to two prior statements by Judge Chutkan. During the October 2022 sentencing of one Capitol rioter, the Judge noted that “[t]he people who mobbed the Capitol were there in fealty, in loyalty, to one man… It’s a blind loyalty to one person who, by the way, remains free to this day.” It’s those last five words – “remains free to this day” – that matter. By any reasonable, commonsense implication, the Judge’s pointed (and superfluous) observation reflects her view that Trump remained free but should not, and that there had been a failure of some sort by DOJ (up to that point) to hold him accountable. You can’t parse this one out. That’s obviously what she meant. 

In the second example, from a December 2021 sentencing, the Judge declared to the defendant that: 

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 have any influence on that. I have my opinions, but they are not relevant. 

This one is more debatable, and parsable. On one hand, it does sound like Judge Chutkan again states her displeasure that Trump hadn’t (yet) been charged. But then the Judge affirmatively declares that she has no view on the issue. She does reference her own “opinion” – take a wild guess what that might be – and then appropriately notes that that opinion is “not relevant.” (There’s some dissonance in the judge noting that the defendant makes “a very good point” about the failure to charge Trump but, in the next breath – perhaps catching herself – says “that is not this court’s position.” So is it a “very good point,” or not?) 

The legal bar for recusal is quite low, perhaps surprisingly so. A defendant need not demonstrate that a judge actually is biased against him, but rather only that a judge’s “impartiality might reasonably be questioned.” Appearances matter, to prosecutors and to our court system. If the public might reasonably wonder about the impartiality of key players, that’s a problem for all. Keep in mind that recusal is not punishment; it doesn’t necessarily reflect wrongdoing by any party. Rather, it’s a safeguard, and there’s always the next judge (or prosecutor) down the hall who can step in and handle a case without raising eyebrows.  

But here’s where Trump runs into a legal wall. Generally, the federal courts have held that a showing of bias ordinarily must be based on extrajudicial statements or conduct by the judge. That is, recusal should be based on what a judge has said and done outside the courtroom, and not on the judge’s in-court findings. That’s because it’s the judge’s job to do just that: assess the evidence and arguments in a given case and draw conclusions, sometimes pointed ones. In other words, a judge’s adverse findings about a person in the course of a case do not evince bias; they evince that the judge has done her job and reached the stated conclusion. If Judge Chutkan had made her comments to a newspaper, for example, then Trump might well be in business on his recusal motion. But she made them during sentencing proceedings, from the bench, based on her considered judgment in those cases. It may seem like a technical distinction, but it makes all the difference here legally. 

Ultimately, it seems virtually certain that Trump’s motion will fail, and Judge Chutkan will decline to recuse herself. But we need to be fair to Trump here. Anyone in his shoes would rightly be concerned about the Judge’s prior comments that seem to call for his prosecution. Honestly, if you were in his shoes: wouldn’t you worry a smidge about the judge’s inclination towards you, based on those statements? Trump’s going to lose the motion to recuse, but he’s not out of line to ask.

Then there’s the potential motion by Trump’s team to move the federal case out of Washington, DC. They haven’t formally made this motion in court, but Trump’s lawyer, John Lauro, has said publicly he would seek to transfer the case out of DC: “We’re looking for a jury that will be more balanced. And West Virginia was a state that was more evenly divided.” The motive here is simple: get a more favorable jury pool. Indeed, Trump received a staggeringly low 5.4% of the vote in Washington DC in 2020. (That means over 94% of DC residents voted against him; even I can do the math on this one.) In fact, of all 94 federal districts in the United States, this is the single worst one for Trump based on the 2020 numbers. (I know: judges instruct jurors to put aside their political views, and that’s nice and all, but take my word for it: jurors are just regular folks, subject to every common bias, prejudice, and emotion.) 

You do have to chuckle at Team Trump’s location of choice, West Virginia. Let’s see, if we’re leaving DC, we’ll skim right past the immediate neighbors, Virginia (where Trump got 44% in 2020) and Maryland (32%). Instead, we’ll jump over to West Virginia, where Trump got a cool 68.6% of the vote. Works out nicely, doesn’t it?

If Trump does in fact make this motion, he’ll lose. He’d need to establish that he cannot receive a fair trial in the charging district due to “extraordinary local prejudice,” and he won’t be able to make that showing here. Some January 6 rioters have tried to get their cases moved out of DC, invoking the trial of the 1995 Oklahoma City bombing, which was ultimately sent to Colorado for trial. But those motions have failed, rightly, and Trump’s will too (if he in fact files it). 

The comparison to Oklahoma City underscores the contrast, if anything. While January 6 was a traumatic event for our democracy and for the citizens of Washington DC in particular, it’s nothing like the domestic terrorist bombing of the Alfred P. Murrah Federal Building, which killed 168 people, including 19 children. The bombing directly damaged the federal courthouse across the street (where the trial would have been held) and injured several courthouse staffers. As reported by Jeffrey Toobin in his outstanding book Homegrown, virtually all the judges, prosecutors, and other public officials who worked in the area personally knew at least one person who had been murdered. There was simply no way to hold a fair trial in that courthouse in Oklahoma City. The same visceral sense of carnage and personal loss simply does not apply to Washington DC and January 6.   

It’s hard to overstate the impact of where we hold a trial, and who presides. We aim for our courts to be neutral, sanitized forums where only facts and law matter. But take it from me (I’ve been there): despite the formalities and legal jargon, this is, in the end, an inevitably human process where outcomes turn largely on who’s on the bench, and who’s in the jury box. 

Stay Informed,

Elie

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