Trump’s Jan. 6 Recusal Play Has No Chance

When Judge Tanya Chutkan admonished former President Donald Trump last week in open court to avoid making “inflammatory” statements that might threaten the integrity of the judicial process during the period of his Jan. 6 prosecution and trial, he afforded her all the respect and courtesy he typically gives judges. On Monday morning he lashed out at Chutkan and her husband, accusing the judge of being “highly partisan” and “very biased and unfair.” The object of this round of attacks comes in the form of a now-familiar demand for her recusal over comments she once made from the bench in a previous Jan. 6 case. Chutkan is presiding over the federal criminal case against the former president for his efforts to overturn the 2020 election, and Trump clearly isn’t happy about the assignment: From the start, he has insisted that she step away from the case, a position his own lawyer has not taken. Early on, he provided no substantive justification for these demands; he has now seized upon Chutkan’s allusion to Trump in an earlier case as a reason for recusal, citing her pointed observation from the bench that he “remains free to this day” despite the events of Jan. 6.

Recall that demanding that “biased” judges and prosecutors be removed from cases is an old, old play for Donald Trump, frequently fraught with racism, xenophobia, and sexism. Almost as soon as Chutkan drew his case, Trump sought her recusal based on claims that she was outrageously and impermissibly punitive in her sentencing of other Jan. 6 defendants. (Chutkan has been one of the harshest sentencers in these cases, but part of that might be because many Jan. 6 defendants have gotten off relatively lightly.) All of that aside, is there any legal merit to this new contention: that there is some evidence of bias in a statement the judge made during the October 2022 sentencing of Christine Priola—who breached the Capitol on Jan. 6—to 15 months in jail? Let’s look at the statement in question.

In a lengthy monologue at sentencing, Chutkan decried the attempted insurrection as “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.” She further observed:

Based on the plain meaning of Chutkan’s comments, even if the former president persuades his lawyers to seek Chutkan’s disqualification, he will fail. It is extraordinarily difficult to compel a trial court judge to recuse herself, and appeals courts—including the Supreme Court—are intensely skeptical of efforts at crying bias. The problem for Trump is twofold. First, Chutkan’s comment shows not actual proof of bias, but rather a perfectly defensible viewpoint that’s shared widely among her colleagues on the bench. Second, even if it did evince bias, it does not begin to rise to the level necessary to trigger recusal under federal law. The same standards that make it immensely difficult to force Judge Aileen Cannon off the Mar-a-Lago case (despite her actual showing of obvious bias in Trump litigation) make it virtually impossible to force Chutkan off the Jan. 6 case.

Unlike the Supreme Court, federal trial court judges like Chutkan and Cannon are bound by an enforceable judicial code of conduct. That code requires a judge to disqualify herself “in a proceeding in which the judge’s impartiality might reasonably be questioned,” including a case in which she has “personal bias or prejudice concerning a party.” This language sounds broad, but the Supreme Court has held that it almost never applies to a judge’s statements during a criminal proceeding. As a rule, “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases ordinarily do not support a bias or partiality challenge.” Pursuant to the case law, these remarks merit recusal only when they are “so extreme as to display clear inability to render fair judgment,” displaying “a deep-seated favoritism or antagonism that would make fair judgment impossible.” The U.S. Court of Appeals for the District of Columbia Circuit, which hears appeals of Chutkan’s rulings, has interpreted this standard as an exceedingly high bar—one that cannot be cleared when a judge merely “volunteered” their harshly critical “opinions” about a defendant’s alleged criminal conduct.

Chutkan’s comments at Priola’s sentencing fall far short of the standard set by SCOTUS. They are not “extreme” at all, but rather an accurate assessment of the situation. Don’t forget that “biased” observers, including Speaker of the House Kevin McCarthy, Senate Minority Leader Mitch McConnell, and former Vice President Mike Pence (all Republicans), have all similarly described the events of Jan. 6 as an attempt to unlawfully and violently set aside the results of an election and, at various times, blamed Trump himself. Recall also the context in which the judges in the D.C. courthouse have been operating over the past several years: Chutkan and her colleagues on the federal district court in D.C. have been inundated with more than 1,000 cases against low-level Jan. 6 rioters. And yet the president for whom the rioters fought still hadn’t face a similar prosecutorial reckoning at the time Chutkan made her comments. When prosecutors charge a sprawling criminal conspiracy, they typically try to also get the big fish. So, Chutkan was expressing the same frustration many observers have been voicing for years now: Why was her courtroom filled with mere minnows? The judge kept incarcerating people who’d played minor roles in the insurrection; at that October hearing, Chutkan even acknowledged that Priola’s actions did not “materially contribute” to the “mob.” Chutkan was obviously frustrated that the leaders of the plot weren’t facing the same sorts of consequences that Priola and hundreds of others were.

Her colleagues have expressed this view as well. While sentencing a different rioter, Judge Amit Mehta noted the irony that he was deciding whether to impose a 30-day jail sentence “when those who created the conditions that led to … the events of Jan. 6” had not been “held to account for their actions and their word.” And Judge Amy Berman Jackson thundered, “It is not patriotism, it is not standing up for America to stand up for one man—who knows full well that he lost—instead of the Constitution he was trying to subvert.”

It is no mere coincidence that Trump’s demands that Chutkan recuse herself and that the case be transferred to West Virginia, where he can presumably get an “unbiased” jury, are all happening the same week that Juan Manuel Merchan, the New York judge overseeing Trump’s criminal Manhattan hush money case, issued a six-page order indicating that he would not step aside in that litigation, despite the fact that his daughter has done some political consulting work for Democrats and that he himself made small donations to Democrats in the 2020 election, including a $15 contribution to Joe Biden. Bolstered by the opinion of the state Advisory Committee on Judicial Ethics deeming him fit to continue sitting on the case, Merchan cited precedent from a New York appellate court indicating that a judge faced with such a request must carefully balance the public interest in preserving public confidence in the judiciary against “the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of their presiding over their case.”

In no small part, Trump’s repeated insistence that every judge in every case against him must recuse themself for whatever fanciful reason his fever dreams may produce manages the neat trick of ensuring that two competing interests flagged by Merchan land on the same side of the ledger: By refusing to be bullied off every lawsuit Trump faces, jurists both uphold public confidence in the judiciary and punish serial attempts to avoid adverse consequences. There is, in fact, no judicial interest to be served when a litigant insists that every judge he encounters is biased, especially judges of color, Obama appointees, or those who fail to express undistilled enthusiasm for violent insurrection in open court.

Judges, like journalists, prosecutors, and public officials, are entitled to have opinions, particularly on matters of law. Judges, like aspiring presidential candidates, are allowed to express those opinions in hearings and in action. We often call that “doing their jobs.” There is an immense amount of space, under Supreme Court precedent, the relevant federal circuit court opinions, and the judicial code of conduct, to allow for comments about minnows and big fish in a criminal conspiracy at a sentencing hearing. More than 1,000 federal defendants have been charged with Jan. 6 offenses, and hundreds have been sentenced. Some of these crimes have been horrifically violent and dangerous, and they have been disposed of by a set of judges sitting quite literally at the scene of the crime in the District of Columbia. That many of these judges have expressed horror and even anger at the assault on democracy is probative less of their bias in these matters than of their inability to normalize, rationalize, or trivialize them. The defendant may be angry that judges who oversee these cases, as part of doing their jobs, are not inclined to forgive and forget the events charged. The rest of us should be profoundly grateful that they keep our collective memory from blithely moving on from them as well.