Trump has "masterfully" crafted a narrative where he's the "victim of biased prosecutions": expert

The judge presiding over Donald Trump's federal 2020 election interference case has declined to recuse herself, dismissing an attempt by the former president's legal team to have her disqualified from the case.

In a strongly-worded ruling, U.S. District Judge Tanya Chutkan rejected the assertions made by Trump's lawyers that she had demonstrated bias against the former president through statements made during two cases connected to the Jan. 6, 2021, attack on the U.S. Capitol by Trump supporters.

Chutkan, a former public defender who was nominated to the federal bench by Barack Obama, has strongly condemned the Jan. 6 Capitol attack while imposing sentences on convicted rioters and has often exceeded the prison sentences suggested by prosecutors. Those facts were used by Trump's defense team as evidence of her alleged bias.

Adanté Pointer, a civil rights attorney in Oakland, California, described these recent efforts to get Chutkan to recuse herself as "nothing more than the latest attempt by Donald Trump's legal team to derail the criminal cases that have been brought against him." Pointer continued, "Criminal defense is generally about muddying the waters, and in this regard, Donald Trump, his legal team and his campaign have been masterfully crafting a narrative where he appears to be the victim of biased prosecutions that are being conducted by political operatives who are out to get him."

Trump's team argued that prior statements Chutkan made to individuals accused of involvement in the Jan. 6 Capitol attack called into question her ability to "administer justice neutrally and dispassionately."

In one hearing, Chutkan told the defendant that the people who "mobbed" the Capitol on Jan. 6 showed "blind loyalty to one person who, by the way, remains free to this day." In another, the judge said that the "people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged."

But in her written decision, Chutkan said she sees no reason to step aside since she has "never taken the position" that Trump should be "prosecuted or imprisoned," as his lawyers had argued.  

Her previous statements, Chutkan wrote, "certainly do not manifest a deep-seated prejudice that would make fair judgment impossible."

Attempting to have a judge disqualified is a complex and delicate strategy that carries the potential risk of souring the relationship between the judge and the defense in court, Pointer observed. Defendants are usually hesitant to bring such a motion unless they have "bulletproof evidence."

"If you criticize a judge's character or question their ability to follow the law and be a neutral arbiter of the law, and you don't prevail in the motion, the judge may become more critical of the defense team. That may undermine their credibility with the judge as the proceedings move forward," Pointer explained

Among legal experts, there was a broad consensus that Trump's request for Chutkan's recusal was unlikely to succeed, since it appeared to lack substantial merit.

"The motion for recusal was always a long shot, and seemed to be designed more to disparage the reputation of the judge than to seek any legitimate legal recourse," said University of Michigan law professor and former U.S. Attorney Barb McQuade. Chutkan explained in her order, McQuade noted, that "her prior references to Trump were in response to defenses raised by defendants appearing before her for sentencing, who blamed Trump for their own misconduct on Jan. 6."

Effectively, Chutkan was telling those defendants that she understood their arguments that Trump had incited their actions, but was nonetheless holding them responsible for their crimes, McQuade added. 

"There is nothing about her prior statements that would meet the recusal standard of causing a reasonable person to fairly question her impartiality in this case," McQuade continued. "But by simply raising this idea, Trump has created a talking point that he will use throughout the litigation to argue that he was unable to get a fair trial."

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Recusal motions, especially those based on allegations of bias, are "relatively infrequent and are very rarely granted," longtime Harvard Law constitutional scholar Laurence Tribe told Salon. 

In cases where an accused individual's legal defense is relatively weak, however, the defendant may be inclined to consider such a motion as part of an overall strategy, "hoping either to strike gold" with an actual recusal or "to poison the eventual jury pool or influence public opinion against the judge," Tribe added.

Trump's lawyers filed their recusal motion following a substantial setback from Chutkan, who has scheduled the trial for March of next year. Trump had requested a delay until well after the 2024 presidential election, when hopes to return to the White House. Chutkan's decision came before Trump's defense team had lodged any substantive motions meant to challenge the charges against the former president.

"Trump's lawyers, if they're any good, must have warned their client that there is no plausible legal basis to seek Judge Chutkan's recusal," Tribe said. "Whether they were that candid with him or, fearing his wrath, just did his bidding without question, it's hard to imagine that any experienced and competent lawyer wouldn't have realized that a recusal motion under these circumstances would lack basis and would represent a blatant effort to influence public opinion while increasing the risk to the physical safety of the judge and her family."

Andrew Fleischman, an Atlanta defense attorney, told Salon that in his judgment it is usually a "mistake" to seek a judge's recusal, adding that he had never believed think Trump's request stood much chance of success anyway. 

"Trump's lawyers tend to kind of just do stuff and see what happens," he said, "and a lot of times recusal motions are filed because the client, rather than the lawyer, thinks it a good idea."

This marks the second time that the former president has made an unsuccessful attempt to have a judge disqualified from one of his criminal cases. 

Judge Juan Manuel Merchan, who is set to preside over Trump's trial in New York on campaign finance charges, dismissed similar requests for his recusal after Trump claimed that Merchan was biased because his daughter had worked as a political consultant for Democrats, including for President Biden's 2020 campaign and before that for future Vice President Kamala Harris. Merchan asserted his confidence in his "ability to be fair and impartial."

Fleischman observed that while it's relatively common for judges to face recusal motions, at the federal level "it's extremely rare" for them to be granted. He cited the famous example of Caperton v. Massey, a case under an appellate judge who had accepted large campaign donations from a coal magnate who was appealing a $50 million judgment. Even there, he noted, several Supreme Court justices concluded the judge's behavior was "not particularly recuseable." 

"To get recusal, you have to show that the judge is biased against you, and that the bias stems from an extrajudicial source," Fleischman said. "If you run over a judge's dog on the way to court, and he's mad at you, that's extrajudicial bias. If you have a trial about all the dogs you've run over, and by the end of it the judge hates you, that is perfectly permissible bias."

Successful motions for recusal usually involve a judge's close prior relationship with a party in the case or a judge's financial stake in the outcome, he explained. There was little basis for the Trump team's claim in this case because Judge Chutkan's statements came from hearings she had presided over, meaning the source was not extrajudicial.

Trump and his team may have larger public opinion in mind, Pointer suggested. They have tried "to cast the judge as being biased against him," so that if he is found guilty he and his supporters can claim it was "an illegitimate conviction." This follows Trump's larger strategy "of framing criminal prosecutions, congressional inquiries and civil judgments, as well as his election loss, as being illegitimate," Pointer continued.

Considering Trump's favorable polling numbers among Republicans, this message appears to be working, he added. Any potential jury would likely be made up of "some cross-section of society," Pointer said, and since federal trials require a unanimous verdict, "one conservative Republican on the jury could thwart a criminal conviction if he or she believes Trump's argument."