Former President Donald Trump appears to be building factual basis to appeal the federal case against him in Washington for allegedly interfering with the counting of the electoral votes after the 2020 election.
On Sept. 11, his lawyers filed a motion asking the presiding judge, Tanya Chutkan, to recuse herself from the case based on her comments in previous cases that, according to the lawyers, indicated she prejudged the case against the 45th president.
There’s no indication that the judge has any intention to recuse herself. In fact, such a request could even exacerbate any antagonism she may have been holding against President Trump. Nonetheless, it’s important for lawyers to raise such issues because the motion would serve to “preserve” them in case the upcoming trial results in a conviction and the defense would want to file an appeal, according to William Shipley, a defense lawyer and former federal prosecutor who’s been representing many people charged in connection with the U.S. Capitol protest and riot on Jan. 6, 2021.
The Jan. 6 incident plays into the Trump case where special counsel Jack Smith argues that the President Trump tried to disrupt the counting of the electoral votes by Congress on that day, including by encouraging people to come and protest at the Capitol. The indictment stopped short, however, of accusing him of conspiring to hinder the government by force—an offense that falls under the seditious conspiracy statute.
Judge Chutkan has imposed some of the harshest sentences in the Jan. 6 cases, even longer than those requested by prosecutors. During sentencing hearings, she’s described the events of that day in the most dramatic ways.
“I am struck anew with both the horror of what was going on that day and how close we came—how close we came to not fulfilling one of the basic functions of our democracy, which is a peaceful transfer of power,” she said during one sentencing, later adding:
“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.”
While many protesters got into skirmishes with police and some broke into the building, available security footage shows that they were unarmed, save for a few sticks and pepper sprays, and the police cleared them out of the building after several hours. It is not clear how they could have overthrown the government.
President Trump’s lawyers pointed to several comments where the judge hinted at her opinions regarding their client’s culpability in the events.
“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,” she said.
The comment “straightforwardly (and of course incorrectly in the defense’s view) suggests that President Trump has culpability for the events of that day and should not be free,” the lawyer said.
“This would be a natural interpretation of her comments in any context, but is particularly poignant here, where Judge Chutkan directed her statements to a defendant she was about to sentence to an extended term of incarceration. Indeed, her comments suggest that she reached a conclusion, before this case, that President Trump is more deserving of a term of imprisonment than the defendant she was sentencing.”
During another sentencing hearing, the judge seemed to suggest that President Trump was responsible for violence on Jan. 6, despite his explicit request for the protesters to express themselves “peacefully and patriotically” and to “go home in peace.”
“It is true, … 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. … I don’t have any influence on that. I have my opinions, but they are not relevant,” the judge said.
“Most reasonable observers would understand Judge Chutkan’s statements … as both a pre-case determination of disputed facts (that President Trump ‘exhorted,’ ‘encouraged,’ or ‘rallied’ others for unlawful action) and a suggestion that President Trump may and should be prosecuted based on those facts,” the lawyers said.
They pointed out that recusal has a “low threshold” of a mere appearance of bias, where a reasonable observer “might” question the judge’s impartiality.
“It is up to her to decide whether she needs to recuse from the case on the grounds presented,” he said.
The defense can’t easily overcome her decision.
“The Appeals Court has the power to replace her, but not without a proper appeal before it that gives it jurisdiction to act. If she denies the motion, that is not an appealable order. Her refusal would be an issue to be raised on appeal after a trial—but not before,” he explained.
The judge gave the prosecutors until Sept. 14 to respond to the motion and then three days for the defense to respond to the response.
Aside from the D.C. case, President Trump is also facing a trial in Georgia that also deals with his attempts to challenge the 2020 election as well as a trial in a federal court in Florida where Mr. Smith accused him of improperly holding on to some national defense documents from his time in office, as well as a trial in New York where he stands accused of false bookkeeping entries related to his 2016 presidential campaign.
The indictments don’t appear to have hurt his polling numbers so far. As far as GOP primaries go, he’s been increasing his lead over the other candidates, while his Georgia mug shot proved a fundraising hit. Legal expenses related to the litigation, however, have been a significant drain on his campaign coffers.