Twice impeached, four times indicted, judicially-identified rapist, destroyer of family businesses, stochastic terrorist, murderer and all-around moral failure Donald Trump is asking Judge Tanya Chutkan to recuse herself from the 2020 election subversion case against him. Apparently, according to the motion, she is too biassed to sit in fair judgement of the uniquely malevolent criminal, because she made oblique and condemnatory references about him while pronouncing sentence on a case involving another insurrectionist.
So what’s next? As odd as it sounds, it is now up to Judge Chutkan to decide if she is too prejudiced to adjudicate the matter fairly. If she hasn’t done so by the time this article is published, she will almost certainly deny the motion to recuse.
But there’s more to it than meets the eye. The Judge cannot merely proclaim herself unbiased, she must first demonstrate her reasoning to deny when drafting her opinion. She will probably draw on legal precedent showing case after case where past judges have made similar remarks about defendants but did not recuse themselves, and adjudicated their cases fairly anyway.
Next, Trump’s defence team will probably appeal the judge’s decision to deny the motion to the District of Columbia Court of Appeals. The DC Court will almost certainly uphold the denial. After that Trump’s team will ask the Supreme Court to review the denial. The SCOTUS will probably refuse the case because there is no Constitutional principle at issue.
Knowing all this, why is the defense bothering to do this? Are they stupid? Not necessarily. What they’re doing with these ostensibly frivolous motions, apart from trying to build in delays to the case, is constructing a rationale for appeal should they lose their case-in-chief.
If Donald Trump is ultimately found guilty in the 2020 election subversion case, all the motions to dismiss, to change venue and to recuse will be gathered up and handed to someone like Harvard professor Alan Dershowitz to handle the appeal. Dershowitz, who notoriously worked on the Claus von Bülow and OJ Simpson cases, is a known expert on appeals.
What about all these justices on the SCOTUS (and other places) who are loyal to Trump and ideologically aligned with him? Aren’t they a danger? Isn’t it possible that they will stretch or even break the law in order to save Trump?
Not necessarily. For one thing, it’s important to remember that, unlike elected politicians, however Trump-friendly any judge may be, they do not depend on Donald Trump and his cretinous base for survival. Their appointments are for life, and they have no elections to contest.
Second, it’s very difficult for these judges to prejudicially act in Trump’s favor and get away with it. Aileen Cannon tried to unlawfully grant Trump a special master for the stolen documents case, and she was given a severe scolding and smackdown by the appellate panel, many of whom were Trump appointees!
So you need not worry about any of Trump’s more draconian motions. He won’t get away with them and he knows it. He also knows that his best hope for ultimate victory is to stay out of jail pending appeal, because he sure as hell probably won’t win this or any of his other cases. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.
Robert Harrington is an American expat living in Britain. He is a portrait painter.