We therefore have great cause of thankfulness, and shall forget the office of our hand sooner than quittance of desert and merit according to the weight and worthiness.
- Henry V
'spose I should create a standard disclaimer when I'm about to go spelunking into the dark and twisty caverns of our judicial system, and just link to that. If it isn't clear by now, your humble blogger likes exploring this stuff, but since I am not a lawyer nor did I take any classes on law, I approach this subject with keen interest and a layman's understanding (watch me furiously google terms of art like "motion in limine"). So if you find yourself under Federal indictment, do not rely on me for advice and please hire yourself competent counsel like Matlock (I'll stop mixing my media motifs now).
And now to our French causes...
With all the pre-trial stuff going on in Trump's small handful of indictments thus far, there's a lot of dumb non-lawyers like me opining and otherwise trying the case in the proverbial court of public opinion. Political arguments don't really work before real judges, as we saw in 60+ post-election cases and several hundred J6 cases, but that won't stop the carnival barkers:
"The Trump case has been assigned to U.S. District Judge Tanya S. Chutkan, according to the court docket," conservative activist Jack Posobiec wrote on X, formerly Twitter. "Chutkan, an Obama appointee, is the only federal judge in Washington, D.C., who has sentenced Jan. 6 defendants to sentences longer than the government had requested."
Although Chutkan has exceeded prosecutors’ sentencing requests more frequently than other judges overseeing Jan. 6 cases, Posobiec’s claim that she is alone in this practice is inaccurate. We found several other examples.
Of course, it's a disingenuous attempt to suggest there's bias and thus Judge Chutkan must recuse herself sua sponte (we'll get more into that in a bit), which shit the flying monkeys will throw onto Al Gore's intertubes all the live long day. Take this little screenshot (nobody ever fucking links to sources for some mysterious reason):
See? She's already judged Trump guilty and must step aside! Before we get into that legal nonsense, we should take a look at the whole transcript of the hearing where Judge Chutkan handed down her sentence.
This is the case of Christine Priola, a former occupational therapist in Cleveland schools, one of nearly 40 J6 defendants to come before Chutkan1. The Government recommended 18 months’ incarceration, 36 months’ supervised release, and $2,000 restitution. After statements (and videos) from both sides (including the defendant herself briefly), Chutkan laid out how she arrived at the sentence (parts of which I highlight via screenshot since I can't seem to copy text directly, apologies for the suboptimal presentation):
The comment MAGAts focus on out of context doesn't strike me as reflecting any bias from a personal or legal POV. We all "know" what happened on J6, and who instigated the unpeaceful transfer of power. Do we know enough to prove in a court of law? That of course remains to be seen, but doesn't change what we all saw that day, and every human (including a judge!) is naturally going to interpret those events in their own way.
What's more, judges will form opinions through the course of their judge-y work, and will sometimes make remarks based on those opinions. Chutkan has seen a lot of shit, not just regarding J6, in her courtroom. She's even ruled against Trump (and was upheld by SCOTUS) when he forced several months of delay with his bogus Executive Privilege claims. What she hasn't done is tweet inflammatory screeds in all caps, or given speeches on how Trump is "guilty! guilty! guilty!", or written a self-serving book, or anything else extrajudicial.
Instead, I read through the above transcript and all I see is a fair jurist who adjudicates each case on its own merits while offering humanity and empathy to defendants (even when there have been threats made against her) and everybody in her courtroom (special call out to her bright new clerk!). Which is why former US acting solicitor general Neal Katyal can say:
[S]he has a reputation for being a little bit of a defendant-friendly judge. I think it probably comes from the fact that she was herself a public defender, a defense attorney for many, many years before she joined the bench. And so she is someone who I think comes to the bench with a real hearty appreciation for the rights of criminal defendants. And, you know, I think that should give Donald Trump, you know, some comfort. This is not a judge who's, like, known to be on one side or the other of issues, but someone who takes the issues that are before her and treats them fairly.
So it makes sense that Chutkan did not go beyond the Government's sentencing recommendation, instead going lower: 15 months’ incarceration (-3 mos), 12 months’ supervised release (1/3), $2,000 restitution (waived). And she closed her hearing with this:
Now, Trump's lawyers could try to make hay of her comments in court and her "harsh" sentences, but they're gonna really need to twist themselves into pretzels to have any argument that will convince her to recuse, or to get any conviction tossed on appeal. As I see it (remember my disclaimer ^^^), their biggest challenge is overcoming extrajudicial source doctrine.
This comes up in a few places I've found (not an exhaustive search, as I ain't got a paralegal), such as a footnote in Leaman v. Ohio Dept. of Mental Retardation (1987):
[A]n expression of opinion on a pure question of law in a context involving none of the parties to this case is comparable to a similar expression of opinion by a judge who has had occasion to address a particular question of law in a prior judicial opinion. Such expressions of opinion on legal issues are not disqualifying, any more than expressions of opinion on the merits of a case heard by a three-judge panel are disqualifying when the case is reheard en banc.
Then there's US v Barry (1992):
28 U.S.C. § 455(a)...reads as follows:
Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
We have long held that to be disqualifying, the appearance of bias or prejudice must stem from an extrajudicial source...A judge's comments on a case are deemed to be "extrajudicial" only if they have "some basis other than what the judge learned from his participation in the case."...
Thus, remarks reflecting even strong views about a defendant will not call for a judge's recusal so long as those views are based on his own observations during the performance of his judicial duties. Furthermore, even if the remarks should prove to have been derived from an extrajudicial source, they will not require a judge to disqualify himself unless they are of such a character that "an informed observer would reasonably question the judge's impartiality." Barry II, 946 F.2d at 914; see also Heldt, 668 F.2d at 1273-74 (recusal not required under section 455(a) where statements "not sufficient to raise the appearance of prejudice in the mind of a reasonable person who is familiar with all the facts").
That was a DC circuit appeal by none other than disgraced DC mayor, Marion Barry. And finally we have US v Holland (2008), which involved a defendant who made threats to the judge overseeing his case:
We begin with the general proposition that, in the absence of a legitimate reason to recuse himself, “a judge should participate in cases assigned.”...This proposition is derived from the “judicial Power” with which we are vested...It is reflected in our oath, by which we have obligated ourselves to “faithfully and impartially discharge and perform [our] duties” and to “administer justice without respect to persons, and do equal right to the poor and to the rich.”...
Without this proposition, we could recuse ourselves for any reason or no reason at all; we could pick and choose our cases, abandoning those that we find difficult, distasteful, inconvenient or just plain boring. Our mythic Justice, represented by a blindfolded figure wielding a balance and a sword, hears all cases coming before her, giving no preference-whether in priority or result-to the station or economic status of such persons.
...“Section 455(a) asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits.”...The “reasonable person” is not someone who is “hypersensitive or unduly suspicious,” but rather is a “well-informed, thoughtful observer.”...The standard “must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.”
...[T]he judge must apply the subjective standard articulated in section 455(b) to determine whether he can be truly impartial when trying the case. This is a test for actual bias. If the judge feels he cannot hear the case without bias, on account of the threat, then the judge has a duty to recuse himself irrespective of how it looks to the public...
This test is highly personal in nature and requires each judge in such a situation to set aside emotion and thoughtfully examine his ability to impartially “administer justice without respect to persons.”...If he feels there is a risk of prejudice, it is incumbent on him to recuse himself from the case; failure to do so would amount to an abdication of duty and be in clear derogation of the solemn promise he made when he took his oath of office.
Same principles hold, by the way, when that loose cannon in Florida is our subject of discussion. What a lay person - any rando online, hypersensitive or otherwise - sees as bias doesn't enter into the calculus at all, and with good reason (we don't know shit). So good luck with that.
To sum up, if Trump were truly concerned about Chutkan's being "biased" against him, he might consider a bit of humility and civility, instead of antagonizing her. Regardless, it's not about her, but rather the harm done to our democratic republic on J6 and during the lead up to that day.
As the King said: "Touching our person, seek we no revenge, but we our kingdom’s safety must so tender, whose ruin you have sought, that to her laws we do deliver you."
Selah.
1 - DoJ has a running tally (search for TSC to find Chutkan's cases). NPR also has a list that provides a smidge more background on the defendants.
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