Trump Can’t get a Fair Trial from Judge Chutkan

“At its core, the invocation of ‘judicial impartiality’ in political discourse speaks to an ideal of fairness: an impartial judge is a person who acts in a fair manner toward all parties in a case appearing before them.”–Stuart Chinn, University of Oregon School of Law

One of the basic requirements in our system of justice is the necessity for an impartial judge. In fact, “Canon 3E/Rule 2.11(A) of the model code of judicial conduct creates a general requirement for disqualification whenever a judge’s ‘impartiality might reasonably be questioned.’” The model code of judicial conduct even lists “specific examples of circumstances in which a judge’s impartiality might reasonably be questioned.” These include a requirement for disqualification “if the judge has…a personal bias or prejudice concerning a party or a party’s lawyer.”

It would seem that this rule of professional conduct now includes this proviso; “unless the party to be tried is Donald J. Trump.”

Last October, we discussed Federal Magistrate Judge Bruce Reinhart, who signed the search warrant for the FBI allowing the raid on Mar A Lago, despite having recused himself from hearing a civil case brought by the former President just months earlier. We noted then that “(t)he statute…the magistrate cited for his recusal states in part that a judge ‘shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned’ and then describes the various circumstances that could trigger such concerns. They include ‘a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts’ or prior work as a lawyer for a party involved in the case. Reinhart’s order did not specify the conflict or source of his concern for recusal.”

Apparently, Magistrate Reinhart felt he could not be fair in listening to a case brought by former President Trump, but he had no problem with allowing federal agents to search the former First Ladies’ underwear draw, as well as the rest of the Trump’s Florida residence.

Reinhart is not the only clearly biased judge who has been called upon to decide the fate of Donald Trump. Today we consider the Judge appointed to hear Special Counsel Jack Smith’s Second Federal Indictment of the former President – Washington DC District Court Judge Tanya Chutkan.

According to the DC District Court’s webpage, “Chutkan was appointed to the United States District Court for the District of Columbia in June 2014. Born in Kingston, Jamaica, she received her B.A. in Economics from George Washington University and her J.D. from the University of Pennsylvania Law School.” A former Public Defender, Judge Chutkan specialized in white collar crime and antitrust litigation after she left the Public Defender’s Office.

Coincidentally, she just happens to be the judge who has handled the majority of defendants arrested and prosecuted as a result of the Capitol Riot on January 6, 2021. As reported by NBC News, “Chutkan, an Obama appointee who has served on the bench for nearly a decade, quickly established a reputation for imposing some of the toughest penalties on rioters who participated in the 2021 attack on the Capitol. In December 2021, Chutkan gave what was then the longest sentence — just over five years — to a Florida man who had been charged with dispensing a fire extinguisher and throwing it at police during the attack. ‘It has to be made clear that trying to violently overthrow the government, trying to stop the peaceful transition of power, and assaulting law enforcement officers in that effort is going to be met with absolutely certain punishment,’ Chutkan said at the time.”

There is no question that someone who throws a fire extinguisher at police officers deserves a jail sentence. But notice the language used by Judge Chutkan; she clearly indicates her belief that the Capitol Riot was a violent attempt to overthrow the government, not a demonstration that got out of hand.

However, “(a)ccording to an analysis from NPR’s investigative team, as of July 2023, Chutkan had given prison sentences to all of the 38 Jan. 6 defendants to come before her, even though prosecutors had only recommended 34 of them for prison. That stands in contrast to the other judges in Jan. 6 cases who have tended to be more lenient at sentencing.”

The report concludes tomorrow

Judge John Wilson (ret.) served on the bench in NYC

Illustration: Pixabay

Quick Analysis

Ukraine’s Frozen Conflict

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution. Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely. Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace. “Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine. Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a NATO framework and other non-NATO proposals. Daria Novak served in the U.S. State Dept.