Already has 'repeatedly expressed strong and settled opinions about the issues'
[Editor's note: This story originally was published by Real Clear Wire.]
By Julie Kelly
Real Clear Wire
At her first appearance in the criminal case against Donald Trump for his alleged attempt to overturn the 2020 election, U.S. District Court Judge Tanya S. Chutkan repeatedly warned the former president’s lawyers that politics would not be tolerated in her courtroom.
“The fact that [Trump is] running a political campaign has to yield to the orderly administration of justice,” Chutkan said during the August 11 hearing. “If that means he can’t say exactly what he wants to say about witnesses in this case, that’s how it has to be.”
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But even as she warns Trump about his “inflammatory” language, Chutkan has routinely issued politically charged rulings and made incendiary statements of her own while presiding over some 30 cases involving Trump supporters charged in connection with the Jan. 6, 2021, melee at the U.S. Capitol.
A review of thousands of pages of hearing transcripts reveal that Chutkan has repeatedly expressed strong and settled opinions about the issues at the heart of United States v. Donald Trump – the criminal case she is now presiding over.
These include her public assertions that the 2020 election was beyond reproach, that the Jan. 6 protests were orchestrated by Trump, and that the former president is guilty of crimes. She has described Jan. 6 as a “mob attack” on “the very foundation of our democracy” and branded the issue at the heart of the case she is hearing – Trump’s claim that the 2020 election was stolen – a conspiracy theory.
Although judges often make comments from the bench, Chutkan’s strident language raises questions about her impartiality in handling the case against the presumptive GOP nominee for president in 2024.
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The U.S. code that addresses grounds for recusal states, ”Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” One reason to recuse is if the judge has demonstrated “a personal bias or prejudice concerning a party.”
GOP Rep. Matthew Gaetz of Florida recently filed a resolution to condemn and censure Chutkan for exhibiting “open bias and partisanship in the conduct of her official duties as a judge.”
But if the aim among Trump loyalists is to get a new judge assigned to the case, it’s a steep legal hurdle. Stephen Gillers, a professor of law at New York University, said that typically a judge can be recused for bias or the appearance of bias “only when the purported bias comes from a source outside the judge's work as a judge.” He continued, “Almost never will a judge be recused for opinions she forms as a judge – in hearing cases and motions. Judges are expected to form opinions based on these 'intrajudicial' sources. It's what judges do.”
A Trump representative declined to comment about Judge Chutkan’s potential bias. The chief judge of the U.S. District Court for the District of Columbia and the American Bar Association did not respond to requests for comment. Nor did Chutkan.
Appointed by Barack Obama to the U.S. District Court for the District of Columbia in 2013, Chutkan has been one of the toughest judges on Jan. 6 defendants. In several cases, she has given defendants longer prison terms than recommended by prosecutors. In at least two cases she sentenced defendants to jail time when prosecutors only sought probation. Chutkan herself admitted during a July 2022 court hearing that she is “one of the few judges that's given a lot of terms of incarceration” in Jan 6. cases.
On at least one occasion, Chutkan suggested in open court that Trump should have been charged for his alleged role in what she routinely describes as “an attempt to overthrow the government” on Jan. 6.
Before sentencing Christine Priola, a Trump supporter from Ohio who pleaded guilty to obstruction of an official proceeding, to 15 months in jail, Chutkan appeared to lament the fact Trump was not yet in prison. “[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,” Chutkan said on Oct. 28, 2022. “It's a blind loyalty to one person who, by the way, remains free to this day." (Emphasis added.)
Chutkan accused Matthew Mazzocco, another Jan. 6 defendant, of choosing Trump over the country. In rejecting Mazzocco’s argument that he traveled from Texas to Washington to engage in a legal political demonstration, Chutkan declared at his October 2021 sentencing hearing: “He went there to support one man who he viewed had the election taken from him. In total disregard of a lawfully conducted election, he went to the Capitol in support of one man, not in support of our country or in support of democracy.”
Although Mazzocco only spent 12 minutes inside the Capitol and committed no violence, Chutkun rejected the government’s recommendation of three months home confinement for pleading guilty to “parading” in the Capitol, a Class B misdemeanor, and instead sentenced Mazzocco to 45 days in jail.
Despite President Trump’s explicit request that his supporters march “peacefully and patriotically” to the Capitol, Chutkan blamed Trump for the Jan. 6 violence while sentencing Robert Palmer, who pleaded guilty in June 2021 to one count of assaulting police officers with a dangerous weapon (a fire extinguisher). In that case, Palmer’s lawyer sought a reduced prison sentence by echoing the judge’s view of Trump.
“Mr. Palmer went to the Capitol at the behest of the former president,” attorney Bjorn E. Brunvand wrote in a December 2021 sentencing memo to Chutkan. “Like many others who participated in the Capitol riot, Mr. Palmer blindly followed the many figures who falsely but persistently claimed that the election had been stolen from the president.”
Palmer himself told Chutkan that Trump’s claims about a “stolen” 2020 election prompted him to travel from his Tampa home to the nation’s capital to participate in the Capitol protest. In a handwritten note dated November 2021, Palmer told Chutkan that he realized “Trump supporters were lied to by those that at the time had great power meaning the then sitting president, as well as those acting in his behalf.”
Palmer apologized to Chutkan for his conduct and begged for mercy.
His plea fell on deaf ears. Although Chutkan expressed no sympathy for Palmer, whom she sent to prison for more than five years, she amplified Palmer’s assertions that Trump bore some responsibility:
And it is true, Mr. Palmer 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 negotiate plea offers. I don't make charging decisions. 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. I have my opinions, but they are not relevant. And you're correct in that no one who was encouraging everybody to take the Capitol has been charged as of yet, but I don't think that fact means that you should get a lower sentence.
Chutkan’s references to the former president aren’t the only area of concern for Trump. Her comments from the bench also suggest that she shares the same view of Jan. 6 as the man prosecuting Trump in her courtroom, Special Counsel Jack Smith.
Tasked by Attorney General Merrick Garland with investigating “whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021,” Smith indicted Trump in the District of Columbia on three conspiracy counts and one obstruction count last month.
Throughout the 45-page indictment, Smith repeatedly accused Trump of knowingly promoting falsehoods about the 2020 presidential election. “[For] more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But the Defendant repeated and widely disseminated them anyway – to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”
Chutkan clearly shares that view. On numerous occasions, the judge has insisted the 2020 election was legitimate and fully vetted by the court system – a claim disputed by Trump that lies at the heart of the case she is now hearing.
“He went to the Capitol because, despite election results which were clear-cut, despite the fact that multiple court challenges all over the country had rejected every single one of the challenges to the election, Mr. Palmer didn't like the result. He didn't like the result, and he didn't want the transition of power to take place because his guy lost,” Chutkan also said during Palmer’s sentencing. (When not cryptically referring to Trump, Chutkan often describes the former president as “guy.”)
She has accused individuals who believe the 2020 election was “stolen” as promoting “conspiracy theories.” In the case of Donna Bissel, who pleaded guilty to the nonviolent petty offense of “parading” in the Capitol, Chutkan cited Bissel’s personal beliefs as reason to sentence her to 14 days in jail rather than impose the three-year probation sentence recommended by prosecutors.
“As noted in the government's sentencing memo, the defendant appears to be susceptible to believing outlandish and absurd conspiracy theories,” Chutkan said during Bissel’s October 2021 sentencing. “To protect the public, it's important to make sure that she does not fall victim to another lie or conspiracy and act out in a way that again jeopardizes public safety. It's one thing to believe in conspiracy theories in your basement, and it's another thing to act out on them and, for instance, to travel from Indiana to D.C. to storm the Capitol to overturn an election.”
Court records show that Chutkan has repeatedly scolded defendants who question the integrity of the 2020 election – skepticism shared by 39% of Americans, according to a recent CNN poll. Here are a few examples of Chutkan’s comments on Jan. 6:
- USA v. Scott Ponder: “When you say you got caught up, Mr. Ponder, there's a lot of rage and a lot of emotion and a lot of tension as you describe, and people felt very strongly, right or wrongly, that an election had been stolen. I think the evidence is quite clear that it had not, but that's neither here nor there.” (July 26, 2022)
- USA v. Benjamin Larocca: “Everyone standing around with their cameras on that — in front of those doors, every single one of those people contributed to the mob that tried to intimidate those police officers; that tried to gain entry into that building; that were trying to stop the transfer of power and nullify a lawfully conducted election. This was a lawfully conducted election.” (August 10, 2022)
- USA v. Christian Cortez: “[He] was motivated to come because his candidate didn't win and he somehow believed this election was stolen and he wanted to get it back. As I said, this wasn't just a protest. He wanted to — that mob wanted to overthrow the government. They wanted to undo the results of what they considered a stolen election; their guy didn't win.” (August 31, 2022)
Little Nuance: Chutkan’s View of Jan. 6
For Chutkan, the events of Jan. 6 provoke strong emotions, which she freely volunteers from the bench. “[Every] single time I watch the videos and look at the photographs of what was going on that day, I am struck anew by how horrible this was, by how violent and terrifying, and how the outnumbered and vastly unequipped law enforcement officers were feeling that day as they were basically struggling for their lives and wondering if they were going to make it home to their kids,” Chutkan told defendant Matthew Caspel in December 2022. “I don't know if we'll ever recover from that.”
A former public defender in Washington, D.C. – one of the country’s most perennially violent cities, and one generally lenient toward criminals – Chutkan argues that Jan. 6 is among the worst crime scenes she’s ever witnessed.
“I watch these videotapes in almost every case, and every single time I am struck anew at how horrifying the events of that day were,” she volunteered to Benjamin Larocca, who pleaded guilty to a disorderly conduct misdemeanor and received 60 days in jail. “And I'm struck as someone who is watching – has seen this kind of footage multiple times and was looking at footage on the day – and as somebody, frankly, who has seen a lot of crime scene footage. I was a criminal defense lawyer, I was a public defender for many years. I'm not easily shocked, but it's shocking.”
Many observers believe Trump already confronts a nearly insurmountable task in receiving a fair trial in the nation’s capital, a city that voted 92% for Joe Biden. Further, the Justice Department has a near-perfect conviction rate in Jan. 6 trials. Chutkan’s extensive record of comments suggest the judge presiding over his case will not make it any easier.
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