I’ve been reading and watching with great interest the media commentaries by law school professors and legal scholars about the election fraud indictment of Donald Trump. While their analyses of the legal issues have been most informative, I decided it was time for the public to get a trial lawyer’s perspective on the challenges facing Trump as he navigates his way through the procedural minefield waiting for him in the United States District Court for the District of Columbia.
Yesterday The American Spectator published the first in a series of articles giving my grunt-level estimate of the situation.
Here it is.
Trump’s Inferno – The American Spectator | USA News and Politics
“Through me you pass into the city of woe … abandon all hope, you who enter here!”
— Inferno by Dante Alighieri (1265 – 1321)
Donald Trump’s election fraud case has been assigned to Judge Tanya Chutkan of the U.S. District Court for the District of Columbia.
This is a very bad start for Team Trump.
Jamaica-born Chutkan is a former assistant public defender who later worked at the law firm of Boies Schiller Flexner LLP (BSF) from 2002 to 2014. From 2010 to 2014, Hunter Biden was “of counsel” to BSF which provided services to Burisma Holdings, the Ukrainian energy company, which paid an estimated $250,000 in legal fees.
In 2014, she was appointed to the bench by President Obama.
She has reportedly sentenced at least 38 defendants who were involved in the Jan. 6 Capitol Hill riot to periods of incarceration ranging from five days to ten years.
In contrast to some of her colleagues on the bench who have imposed lenient sentences on some of the rioters, the Associated Press reports that she “has matched or exceeded prosecutors’ recommendations in 19 of her 38 sentences.”
According to Politico, at one sentencing she rejected counsel’s argument that the Jan. 6 defendants were being treated more harshly than Black Lives Matter protesters who rioted in cities across America.
She characterized the BLM rioters as people who gathered “to protest the violent murder by the police of an unarmed man. Some of those protesters became violent. But to compare the actions of people protesting, mostly peacefully, for civil rights, to those of a violent mob seeking to overthrow the lawfully elected government is a false equivalency and ignores a very real danger that the Jan. 6 riot posed to the foundation of our democracy.”
The election fraud case isn’t the first time that Trump has been a litigant in Chutkan’s courtroom. When he sought a court order blocking a records subpoena from the House Jan. 6 Committee, she ruled that, as a former president, he could no longer claim executive privilege. In her written opinion, she summed up her reasoning by stating, “President’s are not kings, and Plaintiff is not President.”
Now 28 U.S. Code Sec. 455 provides that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” or where “he has a personal bias or prejudice concerning a party” in a case.
So, given her history, will Judge Chutkan recuse herself from Trump’s election fraud case?
Are you kidding? Of course she won’t! From her standpoint, this is the opportunity of a lifetime. She is in the perfect position to make sure that the man who came to Washington to drain the swamp will share a prison cell with the Jan. 6 rioters. She’s even said as much from the bench.
Politico reports that, at the sentencing of one of the Jan. 6 defendants, she observed that “no one accused of orchestrating the effort to subvert the election had been held accountable.” In addressing the defendant she stated that “the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged.”
Want to guess who she was talking about?
As such, she is poised to become the avenging judicial angel who will make sure that the abhorrent Trump pays mightily for his sins against the Biden regime, the Democrat/Republican uniparty, the administrative state and the donor class that own and operate Washington. She will dine out for free and be on the Georgetown party circuit for the rest of her years as she ascends to the highest strata of social prominence, influence, and the judiciary.
So it is that, regardless of the clear provisions of the U.S. Code, she’s not about to screw up her promising future by recusing herself from the case. On any recusal motion, she will undoubtedly find that no reasonable person could question her impartiality or that she has a personal bias or prejudice regarding Trump.
But could Team Trump have her disqualified by a higher court?
Ordinarily appellate courts are most reluctant to grant such requests for disqualification which they view as improper “judge shopping”. Whether that reluctance would prevail in the unusual circumstances of Trump’s case remains to be seen. But, at this stage of the proceedings, it seems highly unlikely that a higher court would intervene and remove Judge Chutkan.
Which brings us to the pressing matter of whether Trump can obtain a change of venue out of the D.C. fever swamp where the vast majority of the inhabitants despise him.
The answer to that question will be the subject of the next installment of “Trump’s Inferno.”
So stay tuned.
George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net.
George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net.
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