“Although Judge Chutkan may genuinely intend to give President Trump a fair trial — and may believe that she can do so — her public statements unavoidably taint these proceedings,” Trump attorney John F. Lauro wrote in the recusal motion.
“The public will reasonably and understandably question whether Judge Chutkan arrived at all of her decisions in this matter impartially,” the motion said, adding that “the law and the overwhelming public interest in the integrity of this historic proceeding require recusal.”
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By law, federal judges are supposed to disqualify themselves from any proceeding in which their “impartiality might reasonably be questioned,” or in which they have “a personal bias or prejudice concerning a party.”
However, the law leaves it up to the judges themselves to decide after hearing from both sides. Chutkan gave prosecutors until Thursday to respond to the motion, and Trump’s defense until Sunday to make any reply. If Chutkan refuses the request, Trump’s defense lawyers may appeal.
The question is not necessarily what judges have said in other court proceedings but their fairness toward a specific defendant in a specific case, legal analysts said.
A unanimous U.S. Supreme Court ruled in 1994 that “only in the rarest circumstances” can a judge be forced to recuse from a case based on “opinions formed … on the basis of facts introduced or events occurring” in court.
Recusal can be required, Justice Antonin Scalia wrote, if a judge “display[s] a deep-seated favoritism or antagonism that would make fair judgment impossible.”
Trump faces four federal counts in Washington in connection with his efforts to overturn Joe Biden’s 2020 election victory. He is separately charged in state court in Georgia with attempting to obstruct the election results in that state; in federal court in Florida with mishandling classified documents after leaving the White House; and in state court in New York with falsifying business records in connection with hush money payments during the 2016 election. He has pleaded not guilty in all four cases.
In seeking Chutkan’s recusal in the D.C. case, Trump’s lawyers quoted from statements she made at sentencing hearings for two people convicted in the Jan. 6, 2021, riot at the U.S. Capitol.
People in the mob “were there in fealty, in loyalty, to one man — not to the Constitution,” Chutkan said at a hearing in October, adding — in a line that Trump’s attorneys italicized for emphasis — “It’s a blind loyalty to one person who, by the way, remains free to this day.”
The former president’s attorneys also pointed to the judge’s statement at a sentencing hearing for a different defendant in December 2021, long before Trump and his inner circle were under active investigation. ‘The people who may be the people who planned this and funded it and encouraged it haven’t been charged,” she said then, agreeing with a statement a defense lawyer had made. Then she added: “But that’s not a reason for you to get a lower sentence.”
Lauro wrote that the meaning of Chutkan’s statement in the first case “is inescapable — President Trump is free, but should not be.” He called that “an apparent prejudgment of guilt” that should be disqualifying.
Chutkan’s comments in the second case, Lauro wrote, “reflect her apparent opinion that President Trump’s conduct: (1) occurred, and (2) supports charges.” He noted that Chutkan went on to say at that hearing: “The issue of who has or has not been charged is not before me. I don’t have any influence on that. I have my opinions, but they are not relevant.”
Stephen Gillers, a legal ethics professor at New York University School of Law, said views that a judge expresses at the sentencing of one defendant “cannot be the basis for recusing them in the case of a different defendant.”
“Judges are expected to form views after hearing evidence,” Gillers said. “That’s the nature of the job. And judges are trusted not to let those views bias them against other defendants.”
But Charles Wolfram, a scholar of legal ethics at Cornell University, said that comments made by a judge in one case can create an untenable appearance of bias in another. “I think it’s close to the line,” Wolfram said. “It’s a plausible argument for Trump to be making.”
More than 1,100 Jan. 6 riot participants have been charged at the federal courthouse in Washington, and many other judges involved in those cases — appointed by presidents of both parties — have made similar comments during those proceedings.
District Judge Amit P. Mehta said one rioter was “a pawn in a game that’s played and directed by people who should know better.” Judge Colleen Kollar-Kotelly said another “followed then-President Trump’s instructions.” Judge Rudolph Contreras has said at multiple sentencings, “The events of January 6th involved the rather unprecedented confluence of events spurred by then-President Trump and a number of his prominent allies who bear much responsibility for what occurred on that day.”
Judge Amy Berman Jackson has cited as a reason to keep some rioters behind bars the fact that Trump “continues to propagate the lie that inspired the attack on a near daily basis.” And Judge John D. Bates wrote that “one might conclude” Trump “was urging protestors to … enter the Capitol building and stop the certification.” Judge Reggie B. Walton called Trump a “charlatan” who “doesn’t in my view really care about democracy but only about power.”
Mehta, Contreras and Jackson were appointed by Barack Obama, Kollar-Kotelly by Bill Clinton and Bates and Walton by George W. Bush.
Trump has made similar recusal requests before, including in New York, where he is scheduled for trial in March for allegedly falsifying business records in connection to hush money payments during the 2016 presidential campaign.
New York Supreme Court Justice Juan Merchan last month denied Trump’s motion, which cited a $15 donation the judge made to Biden’s 2020 campaign; two $10 donations he made to political organizations that oppose Republicans, and his adult daughter’s digital marketing agency, which works for Democratic candidates and organizations that strongly oppose Trump.