Opinion: Why Trump’s bid to get rid of Judge Chutkan was a lost cause

Editor’s Note: Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is coauthor of “Judicial Conduct and Ethics” (fifth edition), and has written many other books. The views expressed in this commentary are his own. View more opinion on CNN.

Federal Judge Tanya Chutkan got it exactly right when she declined on Wednesday to recuse herself from special prosecutor Jack Smith’s case against former President Donald Trump for illegally plotting to overturn the 2020 presidential election and for conspiring to “corruptly obstruct and impede the January 6 congressional proceeding” for counting electoral votes.

Trump, who has denied all the charges against him, sought to disqualify the Washington, DC, district court judge based on a couple of statements she made in sentencing two other defendants for the January 6 attack on the US Capitol, claiming that her comments demonstrated bias against him. Although Trump’s legal argument was strained and poorly supported (two judicial ethics experts in Slate called it ridiculous), Chutkan still took it seriously.

Therefore, when she rejected the motion, it was via a thorough and well-reasoned opinion. The premise of Trump’s claim, as set out by his attorneys, is that Chutkan made “Disqualifying Statements” (a term they capitalized for emphasis) in two earlier cases involving other defendants. But as Chutkan explained, “a reasonable person” would understand that her statements at the time she made them had nothing to do with Trump’s — or anyone else’s — “potential guilt in a hypothetical future case.”

The first statement was that a defendant who stormed the Capitol committed her crime out of “blind loyalty to one person who, by the way, remains free to this day.” The other statement acknowledged a different defendant’s “very good point” that “the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged.”

According to Trump, these comments, plucked out of context from the dozens of similar cases over which Chutkan presided, were evidence that she had prejudged “the core questions of [his] guilt or innocence.” In fact, her comments were made in response to the two defendants’ pleas for leniency, in which they claimed to have been misled and provoked by others, including Trump himself.

The applicable federal statute requires recusal whenever the judge’s “impartiality might reasonably be questioned,” but the Supreme Court has articulated an exceptionally demanding standard for disqualifying a judge on the basis of in-court statements. In Liteky v. US, the late Justice Antonin Scalia held that such “intrajudicial” statements require recusal in only “the rarest circumstances” when they “display a deep-seated favoritism or antagonism that would make fair judgment impossible.”

Far from prejudging Trump’s culpability, Chutkan was simply responding to the defendants’ arguments, explaining that she found them unconvincing, which the law requires when imposing sentence. As Chutkan explained in her ruling, it was her obligation to consider each “defendant’s relative culpability [as] a potential mitigating factor,” which was what her statements acknowledged.

With nothing close to meeting Scalia’s standard of displaying antagonism, deep-seated or otherwise, Chutkan merely recognized that certain defendants were attempting to blame Trump for inspiring their crimes, an observation that did not preclude fair judgment in Trump’s own later case. In fact, Chutkan made it clear at the time that she does not “make charging decisions,” adding “I sentence people who have pleaded guilty or have been convicted. The issue of who has or has not been charged is not before me. I don’t have any influence on that.”

Chutkan’s decision put it in the simplest possible terms: Her “statements were made in the course of prior judicial proceedings, did not pertain to Defendant’s case, and contained nothing akin to the explicit and often disparaging expressions of opinion” required to disqualify a federal judge.

Given the available facts and the controlling law, the chances of successfully disqualifying Chutkan were all but nonexistent from the outset. Indeed, Trump’s lead attorney, the prominent Florida defense lawyer John Lauro, initially balked at even bringing the motion, diplomatically saying that he would be “very careful of those issues and handle them with the utmost delicacy.”

Trump, on the other hand, is famous for seeking to oust judges he considers biased, which by his definition seems to be pretty much anyone he didn’t nominate (and no doubt including some of those he did). He began agitating for Chutkan’s removal almost as soon as she was assigned the case, declaring that the prosecutor, Smith, had drawn “the Judge of his ‘dreams’” and denouncing her as she “(WHO MUST BE RECUSED!).”

It is never easy to say no to a client, and it is presumably almost impossible when the client is Trump. As in every US jurisdiction, the District of Columbia has adopted Rules of Professional Conduct that govern lawyers’ interactions with clients, opposing counsel and the courts. Rule 1.2 requires a lawyer to “abide by a client’s decisions concerning the objectives of representation,” and Rule 1.3 further provides that counsel must “seek the lawful objectives of a client through reasonably available means permitted by law.”

Not every lawyer makes every possible motion, especially when there is no powerful client demanding scorched earth. Smith, for instance, refrained from seeking the recusal of US District Judge Aileen Cannon in Trump’s prosecution for concealing documents at Mar-a-Lago, despite her blatant favoritism in multiple rulings toward the former president — she was rebuked for them by the 11th Circuit Court of Appeals — in an earlier case challenging the government’s search warrant. Rightly, she has not responded to those rebukes.

Recusal denials are not ordinarily appealable in the middle of a case. That probably won’t stop Trump from attempting to obtain an emergency review in the Court of Appeals or even the Supreme Court. His chances of succeeding in a higher court are negligible, however, and it is a safe bet that this case will proceed to trial with Judge Tanya Chutkan presiding.