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Attorneys for <a href="https://www.washingtonpost.com/donald-trump/" target="_blank" class="contextual_link">Donald Trump</a> on Monday asked U.S. District Judge Tanya S. Chutkan to disqualify herself from presiding over Trump’s federal election obstruction case, saying Chutkan appears to have prejudged the former president’s guilt based on statements she made in past cases involving <a href="https://www.washingtonpost.com/january-6-capitol-riot/" target="_blank" class="contextual_link">Jan. 6</a>, 2021, riot defendants.

“Although Judge Chutkan may genuinely intend to give President Trump a fair trial — and may believe that she can do so — her public statements unavoidably taint these proceedings,” Trump attorney John F. Lauro <a href="https://www.washingtonpost.com/documents/4dd549d4-aa7e-4cb2-9c9c-c535f2c586ea.pdf" target=_blank>wrote in the recusal motion</a>.

“The public will reasonably and understandably question whether Judge Chutkan arrived at all of her decisions in this matter impartially,” the motion said, adding that “the law and the overwhelming public interest in the integrity of this historic proceeding require recusal.”

In addition to his involvement in more than 4,000 lawsuits over the course of his half-century in real estate, entertainment and politics, <a href="https://www.washingtonpost.com/politics/2022/04/29/trump-investigations-litigation/" target=_blank>Donald Trump has been the subject of investigations</a> by federal, state and regulatory authorities in every decade of his long career.

Federal investigators <a href="https://www.washingtonpost.com/politics/inside-the-governments-racial-bias-case-against-donald-trumps-company-and-how-he-fought-it/2016/01/23/fb90163e-bfbe-11e5-bcda-62a36b394160_story.html" target=_blank>accuse Trump and his father of discriminating against Black New Yorkers</a> in renting out apartments. Case settles with no admission of guilt, but Trump has to run ads pledging not to discriminate.

Federal investigators look into whether Trump gave apartments in his Trump Tower to figures connected with organized crime to keep his project on track. Trump denies the allegation. Separately, New Jersey officials probe his ties with mob figures, then grant him a casino license.

New Jersey regulators investigate Trump’s finances and conclude he “cannot be considered financially stable,” yet extend his casino license to protect jobs at his Atlantic City hotel.

Federal securities regulators cite Trump’s casino for downplaying negative results in financial reporting.

New York state sues Trump, alleging his Trump University defrauded more than 5,000 people. <a href="https://www.washingtonpost.com/news/post-politics/wp/2017/03/31/judge-approves-25-million-settlement-in-trump-university-cases/" target=_blank>Trump is found personally liable</a>. After Trump becomes president, <a href="https://www.washingtonpost.com/politics/2019/09/25/how-impeachment-works/" target=_blank>he is impeached</a> — and acquitted — over allegations that he solicited foreign interference in the U.S. presidential election.

Trump is impeached — and <a href="https://www.washingtonpost.com/politics/trump-acquitted-impeachment-riot/2021/02/13/dbf6b172-6e12-11eb-ba56-d7e2c8defa31_story.html" target=_blank>acquitted</a> — a second time for incitement of the <a href="https://www.washingtonpost.com/january-6-capitol-riot/" target=_blank>Jan. 6, 2021, attack on the U.S. Capitol</a>. <a href="https://www.washingtonpost.com/national-security/2022/09/21/trump-sued-new-york-letitia-james/" target=_blank>New York state sues Trump</a>, alleging he inflated assets to mislead lenders. He is also <a href="https://www.washingtonpost.com/national-security/2022/07/26/trump-justice-investigation-january-6/" target=_blank>under criminal investigation for events surrounding Jan. 6</a> and his <a href="https://www.washingtonpost.com/national-security/2022/10/21/trump-documents-mar-a-lago-iran-china/" target=_blank>handling of classified documents</a>.

By law, federal judges are supposed to disqualify themselves from any proceeding in which their “impartiality might reasonably be questioned,” or in which they have “a personal bias or prejudice concerning a party.”

However, the law leaves it up to the judges themselves to decide after hearing from both sides. Chutkan gave prosecutors until Thursday to respond to the motion, and Trump’s defense until Sunday to make any reply. If Chutkan refuses the request, Trump’s defense lawyers may appeal.

The question is not necessarily what judges have said in other court proceedings but their fairness toward a specific defendant in a specific case, legal analysts said.

A unanimous U.S. Supreme Court <a href="https://supreme.justia.com/cases/federal/us/510/540/#:~:text=United%20States%2C%20510%20U.S.%20540%20(1994)&text=Recusal%20under%2028%20U.%20S.%20C.,as%20%22extrajudicial%20source%22%20doctrine." target=_blank>ruled in 1994</a> that “only in the rarest circumstances” can a judge be forced to recuse from a case based on “opinions formed … on the basis of facts introduced or events occurring” in court.

Recusal can be required, Justice Antonin Scalia wrote, if a judge “display[s] a deep-seated favoritism or antagonism that would make fair judgment impossible.”

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Trump faces four federal counts in Washington in connection with his efforts to overturn Joe Biden’s 2020 election victory. He is separately charged in state court in Georgia with attempting to obstruct the election results in that state; in federal court in Florida with mishandling classified documents after leaving the White House; and in state court in New York with falsifying business records in connection with hush money payments during the 2016 election. He has pleaded not guilty in<a href="https://www.washingtonpost.com/politics/interactive/2023/trump-investigations-indictments/" target=_blank> all four cases</a>.

In seeking Chutkan’s recusal in the D.C. case, Trump’s lawyers quoted from statements she made at sentencing hearings for two people convicted in the Jan. 6, 2021, riot at the U.S. Capitol.

People in the mob “were there in fealty, in loyalty, to one man — not to the Constitution,” Chutkan said at a hearing in October, adding — in a line that Trump’s attorneys italicized for emphasis — “It’s a blind loyalty to one person who, by the way, remains free to this day.”

The former president’s attorneys also pointed to the judge’s statement at a sentencing hearing for a different defendant in December 2021, long before Trump and his inner circle were under active investigation. "The people who may be the people who planned this and funded it and encouraged it haven’t been charged,” she said then, agreeing with a statement a defense lawyer had made. Then she added: “But that’s not a reason for you to get a lower sentence.”

Lauro wrote that the meaning of Chutkan’s statement in the first case “is inescapable — President Trump is free, but should not be.” He called that “an apparent prejudgment of guilt” that should be disqualifying.

Chutkan’s comments in the second case, Lauro wrote, “reflect her apparent opinion that President Trump’s conduct: (1) occurred, and (2) supports charges.” He noted that Chutkan went on to say at that hearing: “The issue of who has or has not been charged is not before me. I don’t have any influence on that. I have my opinions, but they are not relevant.”

Stephen Gillers, a legal ethics professor at New York University School of Law, said views that a judge expresses at the sentencing of one defendant “cannot be the basis for recusing them in the case of a different defendant.”

“Judges are expected to form views after hearing evidence,” Gillers said. “That’s the nature of the job. And judges are trusted not to let those views bias them against other defendants.”

But Charles Wolfram, a scholar of legal ethics at Cornell University, said that comments made by a judge in one case can create an untenable appearance of bias in another. “I think it’s close to the line,” Wolfram said. “It’s a plausible argument for Trump to be making.”

Jan. 6 shattered her family. Now they're trying to forgive.

More than 1,100 Jan. 6 riot participants have been charged at the federal courthouse in Washington, and many other judges involved in those cases — appointed by presidents of both parties — have made similar comments during those proceedings.

District Judge Amit P. Mehta said one rioter <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.229236/gov.uscourts.dcd.229236.37.0.pdf" target=_blank>was</a> “a pawn in a game that’s played and directed by people who should know better.” Judge Colleen Kollar-Kotelly <a href="https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2021cr0730-59" target=_blank>said another </a>“followed then-President Trump’s instructions.” Judge Rudolph Contreras has said at <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.232390/gov.uscourts.dcd.232390.50.0.pdf" target=_blank>multiple sentencings</a>, “The events of January 6th involved the rather unprecedented confluence of events spurred by then-President Trump and a number of his prominent allies who bear much responsibility for what occurred on that day.”

Judge Amy Berman Jackson has cited as a <a href="https://www.washingtonpost.com/local/legal-issues/trump-election-claims-capitol-breach-defendants/2021/06/08/036f57ee-bf22-11eb-9c90-731aff7d9a0d_story.html" target=_blank>reason to keep some rioters behind bars</a> the fact that Trump “continues to propagate the lie that inspired the attack on a near daily basis.” And Judge John D. Bates <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.228769/gov.uscourts.dcd.228769.63.0.pdf" target=_blank>wrote</a> that “one might conclude” Trump “was urging protestors to … enter the Capitol building and stop the certification.” Judge Reggie B. Walton called Trump a “charlatan” who “doesn’t in my view really care about democracy but only about power.”

Mehta, Contreras and Jackson were appointed by Barack Obama, Kollar-Kotelly by Bill Clinton and Bates and Walton by George W. Bush.

Trump has made similar recusal requests before, including in New York, where he is scheduled for trial in March for allegedly falsifying business records in connection to hush money payments during the 2016 presidential campaign.

New York Supreme Court Justice Juan Merchan <a href="https://www.washingtonpost.com/national-security/2023/08/14/trump-merchan-new-york-judge-recuse/" target=_blank>last month denied Trump’s motion</a>, which cited a $15 donation the judge made to Biden’s 2020 campaign; two $10 donations he made to political organizations that oppose Republicans, and his adult daughter’s digital marketing agency, which works for Democratic candidates and organizations that strongly oppose Trump.

Finalist, Pulitzer Prize for Public Service, National Emmy Award nominee, Society of Professional Journalists Sigma Delta Chi Award for Public Service, Ursula and Gilbert Farfel Prize for Excellence in Investigative Reporting, American Immigration Lawyers Association Media Leadership Award,

Harvard University, B.A. in English

Spencer S. Hsu is an investigative reporter, two-time Pulitzer finalist and national Emmy Award nominee. Hsu has covered homeland security, immigration, Virginia politics and Congress.

Spencer Hsu

George Washington University, BA in Journalism and Political Science

Rachel Weiner covers federal courts in Washington, D.C. and Richmond, Va. 

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