“Weak on the merits”: Legal expert says Trump request for judge’s recusal “very unlikely to succeed”

Former President Donald Trump’s legal team filed a motion Monday seeking the recusal of the judge assigned to his 2020 election subversion case in Washington D.C., saying that her previous statements about Trump indicate her bias.

Trump lawyers John Lauro and Todd Blanche referred to two sentencing hearings overseen by U.S. District Judge Tanya Chutkan, during which she strongly condemned the January 6, 2021 Capitol attack while imposing sentences on convicted rioters. 

During one of these hearings, which took place in October 2022, Chutkan told the defendant that the people who “mobbed” the Capitol on Jan. 6 showed “blind loyalty to one person who, by the way, remains free to this day.” In another hearing, in December 2021, Chutkan told a defendant that the “people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged.”

His attorneys argued that the statements, which were made prior to Trump’s indictment in the election interference case, called into question Chutkan’s ability to “administer justice neutrally and dispassionately.”

“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, regardless of outcome,” Trump’s lawyers wrote. “The public will reasonably and understandably question whether Judge Chutkan arrived at all of her decisions in this matter impartially, or in fulfillment of her prior negative statements regarding President Trump.”

Trump is now asking Chutkan to direct the court clerk to randomly assign this case to another district judge, The Wall Street Journal reported. At the same time, he is asking her to expedite the review of his recusal request and refrain from making rulings on any other pending motions in the meantime.

But legal experts believe that Trump’s motion is “very unlikely to succeed” since it was not filed in a timely manner.

“Not only is the motion weak on the merits, but it’s late,” Lee Kovarsky, a University of Texas law professor and expert in the removal statute, told Salon. “You have to file a recusal motion at the earliest practicable moment, and Trump’s known about all of this stuff since the case was assigned to Judge Chutkan.”

On top of this, the bar for recusal is “extremely high” and even more so for judicial remarks made in the course of adjudicating cases, Kovarsky added.

“Much of [Trump’s] litigation strategy doubles as a media strategy,” he continued. “That’s all this is. It’s a way of riling his coalition up. I doubt his lawyers even wanted to file it.”

Chutkan, a Barack Obama appointee who was randomly assigned to Trump’s case, has a reputation for imposing harsh sentences on some of the Jan. 6 defendants, even exceeding prosecutorial sentencing recommendations. She has described the violence that unfolded on Jan. 6 as an attack on American democracy and has expressed concerns about the potential for future political violence. But her comments about the attack on the Capitol aren’t enough to have her be recused from the case, according to legal experts. 

“Chutkan’s comments were in the course of a totally different proceeding, and indicate that she has opinions about the guilt of people who provoked the January 6 riot,” Andrew Fleischman, Atlanta defense attorney, told Salon.

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Trump, who has a history of requesting the recusal of judges assigned to his cases, has tried this legal strategy before with at least two judges. 

In a civil lawsuit filed by Trump in Florida against ex-Justice Department officials, Hillary Clinton, and other Democrats, alleging a RICO conspiracy in the 2016 election, Trump asked for the judge’s recusal since they had been appointed by President Bill Clinton. Last year, US District Judge Donald Middlebrooks denied this request, but Trump has since revived it, according to CNN. 

Trump also tried to have the judge presiding over his New York criminal case, connected to hush money payments, removed. Trump claimed that Judge Juan Merchan should recuse himself because his daughter worked in political consulting, including the Biden campaign and Vice President Kamala Harris’ campaign in 2020. However, Merchan denied this request last month.

“Frequent recusal requests are usually a sign of poor client control, because they are often counterproductive,” Fleischman said. “In theory, you might create an issue on appeal if the judge does not recuse, but federal courts are so deferential to judges in most instances that you would need a much stronger argument to have a shot. To the extent that there is a strategy here, there’s always the hope that the judge might say something impolitic in response to the motion that would give you an independent basis for recusal, but I suspect the aims are mostly political.”