Trump, as He Fights Jack Smith’s Effort To Gag Him, Demands That the ‘Very Biased and Unfair’ Judge Recuse Herself

Judge Tanya Chutkan’s decision about whether to gag President Trump in respect of his January 6 trial — his argument that she should demur is due Monday — has become tangled with the prospects for her future as the case’s presiding judge.The judge, an appointee of President Obama who has handed down harsh sentences to January 6 defendants, now has two consequential decisions to make simultaneously: whether to stay on the bench — Mr. Trump wants her disqualified — and whether to mute the 45th president. Both could alter the trajectory of Special Counsel Jack Smith’s prosecution of the former president.When it comes to litigation, sequence is its own kind of strategy. A look at the court’s docket discloses that while the motion for Judge Chutkan to recuse herself was disclosed prior to Mr. Smith’s request for a gag order, it was actually filed second. The difference is due to the court’s unsealing protocols. The request for a gag order was disclosed on September 15, but filed on September 5. The recusal motion dates to September 11. Assessed in the correct chronology, Mr. Trump’s request that Judge Chutkan recuse herself is recast not as a pre-emptive strike but as a risky maneuver prompted by Mr. Smith’s request for a gag order. That the former president would tell the judge that she is unfit to try the case telegraphs how seriously Mr. Trump takes the threat of being muzzled. The former president’s willingness to risk Judge Chutkan’s ire by questioning her partiality in order to avoid a gag order underscores the weight he has assigned to being able to comment on the charges against him. So too does his timing — a motion for recusal could have been filed as soon as charges were brought, but it appears as if the possibility of a gag is what precipitated the maneuver for disqualification. Mr. Trump has remarked that Judge Chutkan is “highly partisan” and “very biased and unfair” and “obviously wants me behind bars.”Mr. Trump could also be endeavoring to create a kind of symmetry between his statements on social media — the basis for Mr. Smith’s case for a gag order — and Judge Chutkan’s statements in those previous January 6 cases. In one, she referenced “loyalty to one man, not the Constitution … blind loyalty to one person who, by the way, remains free to this day.” In another case relating to a request by legislators for Mr. Trump’s White House records, she found against the former president and explained that after his term ended he was “not president” and that “presidents are not kings.” Mr. Trump’s efforts to draw equivalences between his own commentary and hers could work on the campaign trail, if not in the courtroom. The Sun spoke to a longtime litigator, Harvey Silverglate, who is an attorney for one of Mr. Trump’s co-defendants in the Georgia criminal case, John Eastman. Mr. Silverglate maintains that “gag orders are unconstitutional” because they are “prior restraints” on speech, meaning that they attempt to limit what is said before it is spoken. They offer prosecutors, like Mr. Smith, a “bully pulpit” to push their cases. Courts, though, have often allowed them. What makes the issue so salient in this case is that the points being pressed by the Georgian prosecutor, Fani Willis, and the special counsel are precisely matters on which American voters are going to decide for whom to vote. Even a gag order narrowly tailored in the way Mr. Smith is seeking would prevent the articulation of Mr. Trump’s most important campaign points — the bona fides of the prosecutors and the independence of the courts.To put it another way, the political questions Mr. Trump wants to be able to address from the stump are the legal ones — and vice versa. This is no doubt why his attorneys, in filings to Judge Chutkan, highlight not only the reach of the First Amendment but also Mr. Trump’s status as the 2024 Republican presidential front runner. There is little doubt why his team has cited the request for a gag order as another instance of “election interference.” Mr. Smith proposes what he calls a “narrow, well-defined restriction” on Mr. Trump’s speech, barring him from making out-of-court comments that in the prosecutor’s view would “present a serious and substantial danger of materially prejudicing this case.”Mr. Trump, under the proposed gag order, would be silenced “regarding the identity, testimony, or credibility of prospective witnesses” and “about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.” Mr. Smith adds that Mr. Trump “has an established practice of issuing inflammatory public statements targeted at individuals or institutions that present an obstacle or challenge to him.” Not only do the former president’s social media posts risk tainting the jury pool, Mr. Smith says, but Mr. Trump knows that “when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.” Mr. Trump’s “relentless public posts marshaling anger and mistrust in the justice system, the Court, and prosecutors have already influenced the public,” Mr. Smith contends.As an example Mr. Smith points to a threat made against Judge Chutkan. A Texas woman “was arrested because she called” Judge Chutkan’s chambers, Mr. Smith observes, and “made racist death threats” against the judge. The remarks “were tied to the Court’s role in presiding over the defendant’s case,” Mr. Smith says.Mr. Smith’s request puts the threat against Judge Chutkan in the context of Mr. Trump’s comment the day before on his Truth Social platform, in which he exclaimed, “If you go after me, I’m coming after you.” Prosecutors have not offered any evidence that the Texas woman who made the threat had seen or was influenced by Mr. Trump’s remarks.Mr. Trump has also called Mr. Smith a “thug.” One doesn’t have to accept that characterization to see that Mr. Smith’s statements themselves are fodder for the political questions at the center of Mr. Trump’s campaign.Judge Chutkan has explained that “even arguably ambiguous statements from parties or their counsel, if they could reasonably be interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process.” That, too, could be construed as a political statement in the context of this case and campaign. As is her promise to accelerate the trial should Mr. Trump persist in opining on the case even as he works for an acquittal. Mr. Trump could argue on appeal that a ruling by Judge Chutkan gagging him augments the argument that she should recuse herself because it would demonstrate, he could contend, an antipathy toward Mr. Trump that stems from “extrajudicial sources.” A key point of dispute between the special counsel and the former president is whether Judge Chutkan’s past courtroom musings that could be interpreted as hostile to Mr. Trump can serve as the basis for disqualification. Even as Mr. Smith argues that Mr. Trump’s social media loquacity threatens his trial’s integrity, the former president responds that “Judge Chutkan’s statements point to the unmistakable conclusion that the appearance of prejudgment will infect every aspect of this case and cause the public to rightly question the very legitimacy of these historic proceedings.”

Trump, as He Fights Jack Smith’s Effort To Gag Him, Demands That the ‘Very Biased and Unfair’ Judge Recuse Herself

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