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Trump Wants Judge To Recuse, Prosecutors Want Him To STFU In DC Case – Above the Law


(Photo by PAUL J. RICHARDS/AFP/Getty Images)

Last week, as Donald Trump moved to get Judge Tanya Chutkan removed from his case, the court unsealed a simmering fight over the former president’s social media rants.

Of the four pending Trump prosecutions, the special counsel’s election interference case in DC represents the most perfect crystallization of Trump’s legal MO, as his lawyers John Lauro and Todd Blanche flood the zone with borderline frivolous motions, while whining incessantly about the unfairness of it all. Lauro, in particular, appears to be gunning for some kind of performance bonus based on the number of times he refers the former leader as “President Trump.”

On September 5, Judge Chutkan granted the government’s motion to file something both under seal and in a redacted public form. Almost immediately, Trump filed a motion to vacate, claiming that prosecutors had violated their obligation to meet and confer. The government protested that it had indeed conferred with defense counsel and complained that setting a briefing schedule for every filing would “grind litigation in this case to a halt, which is particularly infeasible given the pressing matters before the Court—including the defendant’s daily extrajudicial statements that threaten to prejudice the jury pool in this case, as described in the Government’s motion.”

This appeared to be a reference to a potential request for a gag order, but then Judge Chutkan yanked the filings off the docket and gave the defense time to respond. Trump’s reply is sealed, although he did rend his hair and gnash his teeth at the travesty of being forced to respond in two weeks to the government. That document also contained this hilariously self-refuting series of footnotes.

FN2 The government also failed to confer regarding this proposed schedule. See September 11, 2023, Minute Order (“Future motions that fail to comply with [conferral] requirement[s] may be denied without prejudice.”).

FN3 Prior to filing this motion, undersigned counsel conferred with counsel for the government, who advised the government opposes the relief requested herein.

He also filed a motion for recusal, citing Judge Chutkan’s statements while sentencing two other January 6 defendants who had tried to mitigate their culpability by claiming that the then-sitting president dispatched them to lay siege to the Capitol. Trump argued that Judge Chutkan showed bias when she ruled that, although the man who unleashed the mob remained free, the defendants were responsible for their own conduct.

The government responded that under the standard set out by the Supreme Court in Liteky v. US, judicial recusal is only required for statements which “display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Statements made by the court based on information produced at trial are almost never a basis for recusal, as the DC Circuit confirmed in 2020 when it refused to remove Judge Emmet Sullivan for telling Trump’s former national security advisor Mike Flynn “Arguably, you sold your country out. . . . I’m not hiding my disgust, my disdain for this criminal offense.”

Lauro’s answer rests on the bizarre claim that Judge Chutkan could only have learned about Trump’s continued liberty from sources outside the January 6 prosecutions, and thus the offending statements were “not a judicial finding of fact based on briefing and evidence properly before her.”

In the meantime, Judge Chutkan granted the government’s motion to unseal the disputed document from September 5, which is indeed a motion for a gag order.

“Since the grand jury returned an indictment in this case, the defendant has repeatedly and widely disseminated public statements attacking the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses,” the special counsel wrote. “Through his statements, the defendant threatens to undermine the integrity of these proceedings and prejudice the jury pool.”

Trump has a long history of directing his followers’ venom toward his political foes, unleashing a torrent of death threats and abuse on poll workers, local politicians, and civil servants who dare to cross him. Trump’s daily outbursts on his vanity social media site about the case threaten to poison the jury pool and are an unlawful attempt to intimidate prosecutors, witnesses, and even the judge herself. And so the government requests a limited gag order, as well as an order requiring the parties to get the court’s permission before conducting a jury survey (read: push poll) which might taint a future panel.

In response, Trump attacked Special Counsel Jack Smith as “deranged,” adding in his usual dogwhistle about Smith changing his name, confident that the evangelical supporters gathered in DC for a “Pray Vote Stand” summit would be able to fill in that blank for themselves. 

“He’s a deranged individual and he wants to take away my First Amendment rights,” Trump vamped

“They went to court to get an order that I can’t speak,” he went, “So we’re going to have a little bit of a fun with that, I think.”

Fun? Well … that’s one way to put it.

US v. Trump [DDC Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.


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