On Recusal, Give Trump the Evidentiary Hearing He Demands!

There are a number of fairly insane claims made in Trump’s reply seeking Judge Tanya Chutkan’s recusal.

Trump scolds that an impartial judge should express no opinion.

2 Consistent with the presumption of innocence and due process, an impartial court would ordinarily avoid stating any opinion regarding a third party’s guilt or innocence until that party has received an opportunity to present a defense. See United States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001).

But that is precisely what Chutkan did when she said she “I have my opinions, but they are not relevant:” she didn’t express her opinion. By Trump’s own definition, Chutkan is an impartial judge!

Trump makes a very narrow argument that the eight additional defendants Chutkan sentenced who attributed their actions to Trump, mentioned by the prosecution, did not say Trump directed them to engage in violence, enter the Capitol, or interfere with the proceedings (I included that footnote in this post).

1 None of the excerpts cited in footnote 1 of the Response claim that President Trump directed or encouraged anyone to enter the Capitol, undertake violence, or interfere with proceedings at the Capitol. Of course, no such evidence exists. The defendants in these other cases obviously sought to explain the circumstances of their conduct, but that had no relevance to whether President Trump should be charged. That issue was never before the Court prior to this case. Therefore, the only reasonable conclusion—and the very one that the prosecution consciously avoids—is that Judge Chutkan formed her disqualifying opinions from information outside of the courtroom.

Even ignoring that several of them did say Trump told them to go to the Capitol, that’s a distraction. As prosecutors have shown, one of the two defendants that Trump himself raised, Robert Palmer, literally said that he went to the Capitol “at the behest” of Trump, where — because he had been persuaded by Trump and others he needed to prevent the transition of power — he proceeded to serially assault cops. Trump simply ignores that one of the two cases he himself raised did precisely that.

But the most batshit claim — one that I hope backfires wildly — is the claim that when Judge Chutkan said, “I’ve seen video” during the Christine Priola sentencing, there was no video in evidence before her.

Similarly, Judge Chutkan’s statement that President Trump “remains free to this day,” Motion, Ex. A at 29:17–30:3, had no factual or legal relevance to the matter before her. That conclusion was formed, according to Judge Chutkan, based upon unspecified “videotapes” and “footage” that the prosecution has not established were in evidence and appear not to be. Id. (“I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb.”). But even if they were in the record of the Priola case, they could hardly support a conclusion that President Trump should be charged.

In addition to the sentencing memo DOJ submitted for Priola, they formally noticed the following videos:

1. Government Exhibit 1 is a video approximately 26 seconds in length that shows the crowd behind the barricades on the east side of the Capitol. People in the crowd can be heard chanting, “Stop the steal.” Priola’s sign can be seen in the crowd.

2. Government Exhibit 2 is a video approximately 1 minute and 23 seconds in length that shows the rioters outside the East Rotunda (Columbus) doors, including some rioters reacting to pepper gas. Priola and her sign can be seen while she is standing about 15- 20 feet from the entrance. People in the crowd can be heard chanting, “USA, USA.”1

3. Government Exhibit 3 is a video approximately 3 minutes in length that shows rioters outside the East Rotunda doors attempting to enter the Capitol building. Priola’s sign can be seen in the crowd outside. The video also shows the doors being forced open from the inside and Priola (now inside the building) talking to another rioter on camera and walking down the corridor. People in the crowd can be heard chanting, “Who’s our President? Trump!”; yelling, “Tear it down”; and later chanting, “Defend your Constitution. Defend your liberty.”

4. Government Exhibit 4 is a video approximately 26 seconds in length that shows the breach of the East Rotunda doors. Priola’s sign can be seen outside the building through the open doors.

5. Government Exhibit 5 is a video approximately 2 minutes and 30 seconds in length that shows the rioters breaching the East Rotunda doors. Priola can be seen with her sign soon after she enters the building.

6. Government Exhibit 72 is a video approximately 1 minutes and 28 seconds in length that shows the rioters, including Priola, walking down the east corridor inside the Capitol Building. It also shows Priola holding her sign up to one of the windows and tapping on the glass to get the attentions of rioters outside. Rioters can be heard chanting, “Defend your Constitution. Defend your liberty.” and “Who’s house? Our house.”

7. Government Exhibit 8 is a video approximately 14 seconds in length that shows rioters, including Priola, on the Senate Chamber floor. Priola can be seen and heard talking on her cell phone.

1 The government’s sentencing memorandum incorrectly stated that the crowd could be heard chanting “Stop the steal” and “Who’s our President? Trump!” during this video. ECF No. 56 at 10. [my emphasis]

More importantly, there’s all the other video Chutkan had seen by October 28, 2022.

Do you know how insane it is for someone to tell Judge Tanya Chutkan that by October 28, 2022, the date of Priola’s sentencing, she had not seen video evidence on which she could form an opinion about how central Trump was to January 6? Do you have any idea how many hundreds of hours of video DC judges like Chutkan, pertaining to Priola in Chutkan’s case, but also pertaining to the series of assault defendants whose detention proceedings she had presided over and defendants sentenced before Priola, had seen by that point?

Trump made the argument that by October 28, 2022, Judge Tanya Chutkan had not seen sufficient evidence about January 6 to form an opinion about Trump’s role in the attack. If I were Judge Chutkan, I’d order the hearing Trump claims he wants, refuse to waive his appearance, and force him, his attorneys, and the journalists only beginning to pay attention to January 6 because Trump has been charged to review the video of the attack she had sat through by October 2022.

As one example, Chutkan presided over several spectacular assault cases, including one where a former Marine who had attended the TCF Center mob in Detroit after the election brought his hockey stick to the Capitol and used it to beat a cop, one of the many spectacularly brutal assaults that happened that day.

Trump claims that during the year and a half of January 6 cases she had presided over by October 28, 2022, Chutkan had not seen any evidence from which she could form an opinion about the event. By all means, let’s put the evidence she had seen in the record.

83 replies
  1. LarryVee says:

    Thank you for another excellent article.

    btw: the fourth paragraph begins “Trump makes a very narrow that”

    looks like a word (claim?) is missing

    [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. “LarryVee” is your second username; you’ve published 4 comments here previously as “VThunder.” Pick a name and stick with it each time you comment. /~Rayne]

  2. brucefan says:

    She “certainly” watches the news and the prosecution hasn’t proven there were videos in evidence, so she must have been referring to videos she watched on the news.

    I like to read these as early as possible on the off chance they made an argument to worry about. Back to bed for me.

  3. Twoflower says:

    Great post! That would certainly be a good hearing to have.

    Typo: Near the start you write “Trump makes a very narrow” – the word “argument” is mising.

    • Rayne says:

      Please check the comments before leaving a grammar correction in comments.

      You’ll note someone else made the same point an hour and half before you in the very first comment.

      • BRUCE F COLE says:

        On my screen, for whatever reason, that first comment only appeared after twoflower’s post — shortly after, but after. It happens to my posts sometimes as well, getting posted sometimes much later than submitted.

        But I’ve learned to have two EW windows going and refresh the thread before posting, moderation delays I’m assuming.

        • Rayne says:

          This is another reason why drafting a comment in a notepad/word processor first before publishing is the best approach.

          Draft, proof, refresh the page and look for any new comments published after beginning draft of comment, then edit as necessary and then publish comment.

        • Ginevra diBenci says:

          This has happened to me too. On a recent post, only two comments were showing when I added mine. Soon thereafter, mine was preceded by numerous others I hadn’t seen first. I always do this on my laptop, not my phone, so I’m not sure what’s up.

  4. Zinsky123 says:

    In my view, this pleading is just another example of conservatives misusing language and the meaning of words to twist their opponents arguments or to make points of their own. Judge Chutkin has certainly reviewed dozens of hours of video from 1/6/21 as part of her other cases. But who among has not seen the January 6th video from the Ellipse where Trump explicitly exhorted the crowd to “march to the Capitol”. Conservatives try to twist the words of Hunter Biden’s e-mails to make obscure references to “10%” for certain business partners or “the Big Guy” to mean they have rock-solid proof of Joe Biden’s complicity in nefarious dealings when he may have been referring to the Catholic practice of tithing! Words are tricky things and Trump and his minions exploit every nuance!

    • LadyHawke says:

      And no quotes from the “laptop” should be taken as accurate, given the absurd chain of possession. Even original emails can have had words altered and added by unknown persons or entities.
      It’s all pure bs, as Marcy (and Trump’s lawyers) has thoroughly demonstrated.

    • earthworm says:

      Speculating that in the best manner of “capo di tutti i capi,” the construction of the 2020 campaign and election strategy was entirely crafted with the aim of plausible deniability built in – in retrospect it all seems so transparent. Even at the time it looked like baking a cake with all the ingredients for a coup.
      Wishful thinking: that this will come completely to light at some point.

  5. scroogemcduck says:

    That reply is very weak. They are trying to hang recusal on combining a misrepresentation of the facts and a single Fifth Circuit decision. Last time I checked, DC is not in the Firth Circuit.

    • Rugger_9 says:

      Meidas Touch has been hammering on this being incorrect on many levels.

      One item is what rules apply, because they noted that statements made outside of court are held to a stricter conduct standard to force recusal / removal than a statement made inside court which allows judges to say much more before being asked to step away. Recall as noted in the post that Judge Chutkan was referring to the relevant defendant statements which apparently included the complaint that Defendant-1 wasn’t going to jail himself.

      So, the out-of-court standard was being used for inside-the-court statements. Might be a sanction or two for doing this, but IANAL.

      • Just Some Guy says:

        Ha! Too true.

        The 5th Circuit makes much more sense when you realize that the courthouse is across the street from what was the site of Guy Banister’s private eye office, Cuban Revolutionary Council/Crusade to Free Cuba Committee, and Lee Harvey Oswald’s fave, the Fair Play for Cuba Committee. All in one building!

  6. newbroom says:

    Having been promoted to unprecedented visibility and propelled into the mainstream of our lives by utilizing ‘social media’ as well as main stream media or “corporate” media, it is impossible to be impartial as to an opinion about this phenomenon.

    • Myra_Bo_Byra says:

      To your point, the more Trump talks, on TV on Truth Social, and the videos of J6 are replayed and replayed. Ultimately, doesn’t that backfire for the defense? How can they argue for recusal or change of venue with a straight face. By now everyone in the country has seen all of the videos ad nauseum and has some opinion about. What if there is no venue and no judge left? Chutkan in DC would just as good a judge/venue as any other.

      • Fraud Guy says:

        Then they will claim that they could not get a fair trial in any jurisdiction, so the charges need to be dropped altogether. The “no publicity is bad publicity if it stops my prosecution” defense.

  7. Yogarhythms says:

    You mean this video? Thank you for posting this link for your readers to follow.
    The United States hereby gives notice, pursuant to Local Criminal Rule 49 and Standing Order 21-28, of the following exhibits provided to the Court and defense counsel”
    Batshit is one word Kelly Ann prefers “alternative facts”. I’m personally drawn to “lies”. Judge Tanya Chutkan will have her big hands full of Trumps legal counsel’s lies in the recusal motion before her today. The microwave popcorn with extra butter is only the beginning.

  8. greenbird says:

    please understand: i made it to this after balancing my mental house-of-cards thinking.
    posted as an OT comment to marcy’s TL just now, w some highlighting of the image.
    beneficial feedback if any … lumbering off to Bethlehem now.

    [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. I’m not certain why your comment cleared moderation with the typo in it — an “@” added before “greenbird” which I have now removed this once. Future comments with such typos may not clear moderation. /~Rayne]

    • greenbird says:

      overly tired, and a mind is a terrible thing to lose.
      develop not the hand-tremor of aging …

      thank you, Rayne, for removing that @ ♥

  9. Savage Librarian says:

    Appointed View

    He just cared to make a buck,
    More often he would pass it,
    Until he was a sitting duck
    for the tsk tsk in the tacit.

  10. Leu2500 says:

    “ But even if they were in the record of the Priola case, they could hardly support a conclusion that President Trump should be charged.”

    Trump’s lawyers can’t be so bad that they don’t know the difference between DoJ & the judicial branch, can they? So this must be deliberate conflation for the MAGAts benefit.

    But if his lawyers don’t think he should have been charged, then stop messing around with recusal, change of venue & file a Motion to dismiss.

  11. brucefan says:

    Priola argued her sentence should be reduced because Trump was the mastermind and she was just a pawn.

    Suppose Trump had been charged, at that time, with being the mastermind but the case was not yet concluded. Priola’s argument would have had a little more heft.

    Trump being “free” (not charged) was simply one more reason to reject Priola’s Trump-based mitigation argument. The person you’re blaming hasn’t even been charged.

  12. RitaRita says:

    If the recusal ploy works against this judge, it could be used against all of the DC judges, who have presided over Jan. 6 cases. I suppose Trump’s case for recusal would be stronger if he had been charged with inciting the violence.

    • bmaz says:

      The recusal motion should not, and will not, work. Frankly, I don’t think it should even be given a hearing, as that would set a bad precedent. Trump’s submission does not contain anything that ought compel an evidentiary hearing. Chutken should simply bounce it.

      • SteveBev says:

        FWIW I agree with you that arguments so flimsy should be ruled upon ‘on the papers’ since to do otherwise would be to credit them with at least appearing arguable in some respect or another.

        It also seems to me that to do otherwise would be to reward bad faith – but it maybe I have taken too stringent a view of the ethical boundaries of zealous advocacy in this instance.

        I think we all understand that defence lawyers sometimes have a duty to present an argument on behalf of a client that is weak on the law or on its factual foundation or both, and in doing so must present the case on the issue in the best possible light as it pertains to their client. We all recognise that may involve making tenuous distinctions in the interpretation of case law, and perhaps glossing facts or drawing tenuous inferences, when faced with legal and evidential difficulties that undermine the case for the client.

        However, Trump’s lawyers seem to me to go beyond the bounds of what would be regarded as ethical advocacy, at least in as it would be understood in U.K. courts. Because, in both the motion itself and the reply they didn’t properly cite applicable case law (which ran contrary to their argument as to the appropriate legal tests) and in several important respects misrepresented the true facts and circumstances of the alleged prejudicial statements in ways which go far beyond.
        Am I right to think that their arguments pushed beyond the boundaries of acceptable advocacy as it should be understood in Federal Court? Or have I taken a too stringent view of this?

        • bmaz says:

          To my eye, yes they do go beyond said boundaries. Which is very much part of why I think it would be a major mistake to give them the credibility of ordering an evidentiary hearing on them.

        • SteveBev says:

          Thanks for the reply.

          That view then raises the question as to whether and to what extent it would be right and prudent for comment calling attention to such tactics should form part of any ruling on the issue. Obviously any comment would raise the tensions attendant on the case going forward.

          I imagine that Chutkan, as an experienced and sober minded judge, is more than capable of carefully crafting her ruling in such a way as to outline the law and facts, and delineate the errors in the defendant’s arguments, so as to make it perfectly clear that they were not merely wrong by so wholly misconceived that it would be surprising a responsible advocate would make such errors.

          I would have thought it should be important to lay down a marker. But that’s easy for me to say from my armchair.

      • Doug Kane says:

        I agree with this, and I based on my observation of Judge Chutkan, this is what I think she will do. The only reason to hold a hearing would be to embarrass Trump’s lawyers and that does not seem to be her style at all. Plus, she almost certainly WILL hold a hearing on the request for the limited gag order and require Trump’s appearance at that, so it makes sense for her to deal with the recusal motion with as little fanfare as possible.

  13. Ebenezer Scrooge says:

    Marcy, as usual, is right on the facts and right on the law. But I’m not sure I trust her practical judgment in this issue. Trump’s lawyers are ginning up the recusal ruckus as chum for the rubes. In TrumpLand, there is no such thing as bad publicity–it can always be spun into more chum and more outrage, and thus more politicization of the law. Hearings are newsworthy; hearings are chum. Chutkan would do best to be as boring as possible, and dismiss the motion with six paragraphs.

      • BobBobCon says:

        It’s a claim Trump certainly doesn’t believe. He has a long history of payoffs and threats to keep things out of the news.

        The whole outrage spin cycle is often what he does if he can’t keep something quiet. He’ll also often go the limited hangout route to try to substitute a smaller scandal for a bigger one, but given the choice he’d rather be attacking than counterattacking.

    • sohelpmedog says:

      I take the point of this post is not that there should be a hearing but that a hearing would show just how craven Trump’s position and filings on this issue (really a non-issue) is. Agreed that If there were to be a hearing on this motion – there won’t be – although it would show how wrong-headed and duplicitous the motion to recuse is, it would be a distraction and a sideshow to Trump’s claim of being persecuted and victimized. I don’t think Chutkan is going to give this claim any air and will efficiently shut it down by denying the motion. Having disposed of this whining shit, or before disposing of it, she will issue a critical decision on the government’s pending motion for an order restricting the parties (really Trump’s) public statements and jury studies.

      • Ginevra diBenci says:

        I think bmaz’s argument against holding such a hearing is that whatever it might show, the only people who would get the message already get it–that is, those people are us. Trump’s MAGA supporters could scarcely be expected to read transcripts; Fox wouldn’t cover it, to say nothing of the further-right networks; and it wouldn’t be televised.

        • Tech Support says:

          That’s true, but I think there are more basic reasons as well. If you abstract EW’s hypothetical hearing from the specifics of this case, what she’s describing is a Judge exploiting court procedure to embarrass the defense and/or their counsel.

          It would be akin to having your kid ask a dumb question and then inviting them to repeat the dumb question in front of your friends so everyone can get a laugh out of it.

          Even if the defense’s counsel was more “deserving” of being called out on the basis that they should know better (and probably do), I think it’s fair to say that would be a petty misuse of judicial resources that we wouldn’t want done to us. It could also backfire, like the idea mentioned above that granting a hearing would give an otherwise crap argument a veneer of credibility.

          Don’t get me wrong. I was also like “Yeah, serves em right!” but I get where it’s not worth any momentary satisfaction.

    • Notyouraveragenormal says:


      Trump didn’t file the reply for Chutkan’s consumption. It’s purely for the base. And if she reacts in a way that indicates how tiresome he is, then he’ll spin that too. It’s all part of the media strategy and he’s very good at it in part because the journalist class (present company excepted) follows the cues. Every. Frickin. Time.

    • scroogemcduck says:

      Yup. Judge has considered the motion and has decided that voluntary recusal is not merited and would be contrary to the interests of justice. Defendant’s motion is untimely and he has failed to meet the evidentiary burden for mandated recusal under 11th Circuit and Supreme Court precedent. Defendant is free to waste his money with an appeal to the 11th Circuit Court of Appeals. Meanwhile, the trial will proceed as scheduled.

  14. PeteT0323 says:

    Pretend Justice Chutkan in her response.

    “There is no basis for me to recuse myself from this case and therefore I will not recuse. It is obvious from defense counsels response that they did not thoroughly read the record of the cases cited in particular the sentencing portions thereof.

    In order to limit the impact of frivolous filings and delay tactics I am more committed than even to move this case forward on the fastest track possible in order that justice be served for the American people and Donald J Trump regardless of the eventual outcome.”

        • Rugger_9 says:

          Of course he will but repeating the flimsy argument doesn’t make it more valid, either at the appeal level or at SCOTUS. No doubt IMHO this gets rejected everywhere except with Judge Cannon.

          However, the basic playbook for Defendant-1 is to delay proceedings beyond the election through the inevitable appeals to shoot for the moon at SCOTUS and/or pardoning himself and daring the courts to stop him. Judge Chutkan should refuse the hearing and reject the claim as frivolous and start the appeal process. SC Smith’s response laid out the reasoning quite well, and FWIW, Judge Chutkan is not a neophyte dummy either.

        • earlofhuntingdon says:

          Even Trump has more than one objective amid all this litigation. Delay is important. Creating chaos, especially regarding scheduling in different courts, and causing confusion among voters about the charges and evidence are too. That relates to using one piece of bad news to distract from more dangerous bad news.

          Stoking rage is up there, along with fund raising. And not much beats keeping Trump’s orange face front and center in the media. That’s probably not an exhaustive list. Trump is relentlessly opportunistic. He will abuse whatever’s going on as a way to deal with whatever new comes up.

  15. TimothyB says:

    Thank you for this penetrating post.

    Mr. Trump’s court filings often have no legal purpose but instead political/propaganda purposes. The errors in this reply — missing that judges don’t charge, that at sentencing judges should engage with the convicted person’s arguments, that a judge may (e.g. in a conspiracy, whether charged as such or not) have seen evidence before the trial at hand — are glaring to us, but only distantly linked to the point of this filing.

    Indeed, aside from yelling “bias” — he yells “bias” all the time — most of the deliverables of this filing put “President” into the present tense or offer up odd talking points to the trump propaganda sphere. They aren’t claiming Their Favorite President is a king! Just that “every president is a US citizen entitled to the protections and rights guaranteed by the U.S. constitution.”

    In their alternative universe, Mr. Trump is still president, the rioters were national heroes because the US election system is biased against Trump, black women cannot be fair judges, DC citizens (also black) cannot be fair jurors.

    Indeed, rejecting this reply’s arguments and not recusing will give Mr. Trump another propaganda victory. Judge Chutkan should not have to carry this burden as well as the legal ones, but alas she does carry it.

    • RitaRita says:

      Ity’s propaganda with a purpose. I suspect that Trump has figured that he stands a good chance of being convicted and that he has two good options for remaining out of jail: Win the Presidency and self-pardon or set up conditions for the winner, Biden or President to be named, to want to pardon him. Filing a motion to recuse, frivolous as it may be, serves for him to set up the contention that, if convicted, he was victimized by an unfair system. He will try to burn the judiciary down before he goes to jail. I am sure his lawyers think they are just being zealous advocates and not participants in his desire to burn the system down if that’s what it takes to keep him out of jail.

  16. Stephen Calhoun says:

    IANAL and have not read the recusal motion. so I appreciate Marcy’s findings and the commenters’ views.

    I note the discussion of ‘no video in evidence before her.’ As this specific case unfolds is it possible motions like this will be deemed (something like) frivolous because such motions, at least, contain assertions which are not true?

  17. flounder says:

    Nice post. Testimony from the secret service that kept him from going to the Capitol at the last moment would probably be fun as well. Or the myriad of times that he equated 1/6 criminals as being for him, promising to pardon them, etc. All sorts of ways to establish he saw them as his proxies that day every bit as strongly as the 1/6 criminals or judges.
    At a minimum, if Trump is going to continue with the lawfare, judges should start refusing Trump’s requests to waive appearance. I imagine it drives the dude crazy whenever he has to sit in a boring room with no TV when his Foxy Friends are on.

  18. bloopie2 says:

    I read one headline that said, Biden is already “obstructing” the impeachment inquiry by falsely claiming there is no evidence. Really? If so, then do you admit that Trump is “obstructing” by objecting to the various investigations into his conduct? More to the point, I guess, is this — where do these people come from? Is this type of thing, standard fare for any propaganda machine, anywhere, at any time?

  19. Amicus12 says:

    I think the recusal motion fails for any judicial purpose. The Judge almost certainly will deny the motion and any attempt at interlocutory review will likely fail as well. Importantly, it does not slow things down.

    The challenging issue for the Court is the USG’s proposed gag order. Requiring advance notion of any jury polling is not so controversial. Restricting a Presidential candidate’s speech is highly controversial, even if warranted, and unlike the recusal motion risks Shadow Docket intervention. Despite being warranted, it’s just not an attractive option for the Court to gag Trump’s speech in almost any fashion.

    But the Court warned Trump that improper conduct could result in expedition of the trial date. If you look at the trial schedule, at least to my eyes, there is a fair amount of slack. For example, pre-trial motions, excluding motions in limine are due October 9. The next significant milestone is the USG’s identification of FRE 404(b) evidence (uncharged misconduct, character evidence) December 4.

    That’s nearly two months of slack time that could reasonably be eliminated should the Court choose expedition as the answer to protect against Trump’s potential poisoning of the jury pool or intimidating potential witnesses. There appear to be other milestones that could be accelerated without infringing on Trump’s rights, but that two month October 4 to December 9 gap stands out. Acceleration of the trial schedule could be accompanied by a warning that the Court will impose a gag order if Trump keeps making statements targeting the trial, witnesses, attorneys, and Court.

    The scheduling order appears here. https://storage.courtlistener.com/recap/gov.uscourts.dcd.258148/gov.uscourts.dcd.258148.39.0_1.pdf

    In terms of Trump getting a hearing, it’s going to be a trial date, and I suspect his the evidence of his improper statements now pending before the Court might well get him one sooner than March 4.

    • bawiggans says:

      Assuming that the intended effect of Trump’s publicized utterances with regard to his prosecution is to intimidate and influence potential jurors and witnesses and that the only sanction the judge can practically apply to him is to speed up the schedule of trial-related proceedings, Trump’s response to such an order will likely be an intensified and even more over-the-top media campaign. Flooding the media space with shit nourishes his ever-hungry base and it dares the judge to impose a gag order that would transform his prosecution into a holy war over his (and everyone else’s) First Amendment rights.

      The conditions that are enabling this strategy are a large portion of the citizenry nursing grievances as an excuse to indulge in regression to a state of petulant adolescence and a corporate media that has found pandering to this demographic insures the high hit rates that appeal to advertisers.

    • soundgood2 says:

      At what point does Chutkan or any other Judge on a Trump case demand that he appear in person to assure the court that he hears and understands the limitations put on his speech regarding the trials?

      • earlofhuntingdon says:

        It’s a routine matter of criminal procedure: the defendant is not required to appear for a lot of pre-trial matters. Whether he chooses to appear when he’s not required to do so comes down to a matter of trial strategy. For Trump personally, it comes down to never wanting to appear to be subject to anyone else’s authority.

        • soundgood2 says:

          I understand that he is not normally required to appear, my question is can the Judge demand that he appear since he is acting like he does not understand her rulings regarding what he can and cannot say about the case?

        • Rugger_9 says:

          Given how much has been flung into the discourse by Defendant-1, in spite of Judge Chutkan’s orders (plus other orders as well) she may just clap him in irons to ensure the jury pool isn’t tainted further. This is not what the legal team is doing (except maybe Lauro) but the defendant on his own.

          How would a ‘tainted jury’ appeal work out if the defendant was the one tainting it despite orders to STFU?

    • Amicus12 says:

      If you go on the United States District Court for the District of Columbia’s website and search judicial calendars, unless I am missing something the only thing Judge Chutkan has scheduled in January is a Jan. 6 misdemeanor trial due to start January 8. United States v. Dillon, 23-CR-108. It appears John Pierce is the defendant’s attorney.

      It seems that she has nothing scheduled for the entire month of February. (That could change even as early as this afternoon). But I find the fact that her February calendar is wide open and her January calendar is limited to be quite interesting.

    • SteveBev says:

      Re the arguments on the gag order
      As I understand the sequence of recent filings
      1 sealed application for gag order
      2 Trump’s motion to recuse
      3 Government reply to motion to recuse
      4 motion for gag order unsealed
      5 Trump’s response to Government reply re recusal motion

      So either there isn’t a response from Trump re gag order motion, or at least not one which is public as yet.

      Do you have any idea as to when Trump’s response to the gag motion should be due, and made public and the time frame for the matter to be resolved.

      I apologise if I have misread the situation, but it seems to me that Trump seems to be attempting to buy time to push off resolution of the gag order issue with the recusal shenanigans, and is avoiding making a response to the gag question using the pending recusal issue as pretext. If that is the case how swiftly would it be reasonable to expect a resolution to both?

      • Amicus12 says:

        According to Local Criminal Rule 47(b) it looks like its 14 days from September 5, so September 19 (tomorrow) is the due date for Trump’s response to the gag motion (for want of a better descriptor). The USG then has 7 days to reply (although I don’t think the Court has to await a response). Given the stakes, let’s assume a reply, so the whole thing is fully briefed by September 26. As to what will be publicly filed, who knows?

        The Local Rules are linked.

        If the Court is of the mind to expedite the trial date, as opposed to grant (or deny) the USG’s proposed gag order, then it will be inclined to act quickly. Judge Chutkan could always modify the proposed gag order and not expedite but it seems likely she will do something and expedition seems like the path most likely to avoid defense pleadings that eventually succeed in securing higher court intervention.

        I don’t see any inherent linkage in the resolution of the USG’s motion and Trump’s recusal motion, and, in any event, the USG has given the Court ample grounds for dismissing that motion.

        And take all this with a grain of salt: “it’s difficult to make predictions, especially about the future.”

        • SteveBev says:

          Thanks for the reply

          Obviously the timing of the recusal motion and the consequential filings being something of a distraction tactic re the gag order application is a presumption on my part.

          And it is pretty clear that the recusal motion is by any objective measure very flimsy indeed.

          But thank you for giving me a clearer idea of what extent it might have been an effective attempt to game the system.

          To what extent his tactics are effective attempts to game the public relations efforts around Trump’s desired result, viz presenting himself as being victimised at every turn by the court and trial processes, is yet to be seen.

        • Amicus12 says:

          Turns out Judge Chutkan set September 25 as the date for Trump’s response to the USG’s motion for protective order.

  20. jdmckay8 says:

    fairly insane claims

    I guess fairly means this particular insanity is mainstream, normal, every-day kind’a insanity. Just mildly milk-toast insane, nothing to make him stand out in this tsunami of insane.

    Excuse me while I vomit in my boot.

  21. Howard Appel says:

    My only concern about that approach is does that give tRump the opportunity to argue that the Judge cannot help but be prejudiced by all of the video she haw seen?

  22. Richard Reeve says:

    I don’t know if Judge Chutkan will address this, but … isn’t much of the “public perception” of the Judge’s purported bias (non-existent in reality) due to a large extent to the almost daily comments by Trump, his attorney, Republican politicians, and right-wing pundits shouting about the unfairness and “weaponization” of the justice system? Having created a straw man, they are now seeking to justify recusal because their own rantings might have convinced their base of the supposed “unfairness” of the Judge and the justice system in general. Would love to see someone, even if not the Judge in her ruling, emphasize this reality a bit more than has been done so far.

    • ButteredToast says:

      Yes. A similar situation to how Republicans (and if I recall correctly, in one case even Joe Manchin) refer to lack of faith in the integrity of US elections by a large segment of voters as something that needs to be considered when crafting legislation…as if it were an organic development and not due to Donald Trump’s and those same Republicans’ lies and conspiracy theories.

  23. brucefan says:

    Whenever we saw a pleading like Trump’s, somebody (me) was assigned to check the cites/partial quotes/ellipses/brackets, because if they were this flawed on their overall logic they would certainly mis-describe precedent.

    This malarkey about “it’s not intra-judicial unless the previous case involved a ruling on Trump’s guilt” brings to mind the phrase “created out of whole cloth.” Scalia spilled a lot of ink, but you won’t find the holding Trump purports to rely on.

  24. David F. Snyder says:

    This must be a part of a “not guilty by reason of insanity” strategy by Trump, right? Otherwise, this filing makes no sense. Oh, wait. It’s Trump. Sense has nothing to do with it.

  25. Nessnessess says:

    Thank you for another insightful take.

    What I wonder (and would like to not worry about) is if all the crazy motions and delaying tactics, regardless of their individual merits or success, can cumulatively create sufficient complexity, and demands on on the players’ attention, that mistakes are made and a mistrial could happen? Obviously, IANAL.

    • Rugger_9 says:

      SC Smith doubtless has seen this gaslighting before, and FWIW his filings have been succinct, thorough and anticipates the next step pretty well. Judge Chutkan has been fair, but also on time and so far has been careful enough to include reasoning detailed enough for the appeal court to follow.

      I think the defense will continue to try, but they got a no-nonsense judge and no-nonsense prosecutor that know their law.

  26. brucefan says:

    Trump may see denial of the recusal motion as an opportunity for a blockbuster interlocutory appeal, with a side order of shut the case down.

    Taken under advisement might be a good approach.

    • bmaz says:

      Eh, no, not how it works. It would be extraordinary for DC Circuit to accept an interlocutory appeal on this issue, appeals are for when the case is over. “Taken under advisement” would just make it worse.

Comments are closed.