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Special counsel denounces Trump’s recusal demand for federal judge in election subversion case

Molly Gaston cited the Watergate proceedings as an example of a judge commenting on the gravity of a case that did not meet the standard necessary for recusal.

WASHINGTON (CN) — Special counsel Jack Smith denounced former president Donald Trump’s demand that the federal judge overseeing his election subversion case recuse herself over allegations of bias, in a late-night filing on Thursday.

Molly Gaston, a member of the special counsel team, wrote in the response that John Lauro, Trump’s lead defense attorney in Washington, had cherry-picked and misunderstood statements that U.S. District Judge Tanya Chutkan of the District of Columbia made during the sentencing hearings of two Jan. 6 defendants.

Lauro claimed in his filing on Monday that Chutkan had a “prejudgment of guilt” against Trump and pointed to a comment she had made during a hearing in October for Christine Priola, where Chutkan noted that many of the rioters were there because Trump had called his supporters to attend his “Stop the Steal” rally on Jan. 6, 2021, and encouraged them to “fight like hell” before they marched on the U.S. Capitol. 

“This was nothing less than an attempt to violently overthrow the government — the legally, lawfully, peacefully elected government by individuals who were mad their guy lost,” Chutkan said before sentencing Priola to 15 months in prison. “The people who mobbed that Capitol were there in fealty, in loyalty to one man … . It’s a blind loyalty to one person, who, by the way, remains free to this day.”

Gaston said that the Barack Obama appointee's comments were in reference to arguments posited by defense attorneys. They argued that their clients deserved leniency because their actions were inspired by, and not as serious as, those who had caused the attack — such as Trump — without being held responsible. Gaston added that in many of these cases, Chutkan had rejected such arguments to focus on the actions of the defendants. 

“There is no mob without the members of the mob,” Chutkan said. Priola’s attorney "made a point … that if we were to take your participation out of that group, that everything would have still happened; your actions did not materially contribute. But they did, because you were there.” 

The comments Chutkan made were not expressions of her own political opinions, Gaston said, but rather a legal opinion she developed because of the evidence presented throughout Priola’s case. 

Recusal is already a rare process with a high bar to prove a judge is prejudiced against a defendant, especially when the request is based on statements made during the judicial process.

A similar demand was made during the government’s prosecution of President Richard Nixon’s aides following the Watergate scandal during the 1970s. H.R. Haldeman, Nixon’s chief of staff, had asked for a new judge over statements made during an earlier trial of a co-conspirator. 

At the time, U.S. District Judge John Sirica, a Dwight D. Eisenhower appointee, noted that the Watergate scheme was “terrible,” and he was “sure this conspiracy has cost society millions of dollars … . You cannot close your eyes to these things.” 

The D.C. Circuit ruled that the comments were “judicial acts” and that the standard for a disabling prejudice to warrant recusal “cannot be extracted from dignified though persistent judicial efforts to bring everyone responsible for Watergate to book.” 

That decision echoes a pervading sense among the judges at the federal courthouse that the Jan. 6 attack on the Capitol was one of the darkest days in American history and presented an existential threat to the nation’s democracy, thus warranting similar judicial efforts to hold those responsible for the attack to account. 

Gaston cited two cases where recusal requests have been successful to contrast with the defense’s argument. One involved a 1921 case where the judge displayed extreme racial prejudice against German Americans — saying “their hearts are reeking with disloyalty” — and another in 2009 where the judge hurled profanities at the plaintiff and their lawyers more than 15 times. 

Trump’s team will have a chance to respond within the next three calendar days. 

While it is unlikely that Chutkan will decide to recuse herself, even if she did, Trump would have difficulty finding a friendlier judge at the Washington courthouse, where judges have sentenced more than 600 Jan. 6 defendants and made similar comments to Chutkan's about the severity of the Capitol riot. 

Even Trump-appointed judges, like U.S. District Judge Timothy Kelly, have passed down long prison terms for the former president’s supporters, like ex-Proud Boy leader Enrique Tarrio, who will spend the next 22 years in prison for his role in the attack. 

Trump has hinted at another Hail Mary effort to move his case out of Washington to West Virginia in the hopes of finding a more sympathetic jury pool.

Voters in the District overwhelmingly supported Joe Biden in the 2020 presidential election, with 93% choosing him, while only 5% voted for Trump. In West Virginia, however, Trump secured 68% of the vote.

Chutkan will have the ultimate say on that issue so long as she remains his judge. She is not likely to grant that request if it ever materializes, as the Sixth Amendment requires a trial to take place in the “district wherein the crime shall have been committed.” 

The trial could not get much closer, since the E. Barrett Prettyman Federal Courthouse is just two blocks from the Capitol, with the building visible through the cafeteria’s windows. 

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Categories / Criminal, National, Politics

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