Courts & Litigation Criminal Justice & the Rule of Law

Trump’s Motion for Recusal of Judge Chutkan Is Extraordinarily Weak

Roger Parloff
Monday, September 18, 2023, 11:24 AM
Both Supreme Court and D.C. Circuit precedents hold that a judge’s in-court statements about cases before them almost never warrant recusal.
Former President Donald Trump speaking with supporters in Phoenix, June, 2020. (Gage Skidmore,; CC BY-SA 2.0,

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Last October, U.S. District Judge Tanya Chutkan of the District of Columbia was called upon to sentence Christine Priola, who had pleaded guilty to charges stemming from her role in the Jan. 6, 2021, insurrection. With other rioters, Priola had penetrated the Capitol and made it all the way to the Senate floor with a sign reading “WE THE PEOPLE TAKE BACK OUR COUNTRY” while wearing pants bearing the legend “MAKE AMERICA GREAT AGAIN.”

In her sentencing memorandum, Priola’s attorneys sought leniency, arguing that public statements by former President Donald Trump “and his inner circle” had convinced her that the election had been “stolen.”

In explaining the reasons for her “difficult” decision at Priola’s sentencing, Judge Chutkan said this:

And so while [Priola’s attorney] is correct in that your background didn’t involve any criminal activity, the events of that day and the seriousness of those events cannot be understated. This was nothing less than an attempt to violently overthrow the government, the legally, lawfully, peacefully elected government by individuals who were mad that their guy lost.

I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb. And the people who mobbed that Capitol were there in fealty, in loyalty, to one man—not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country; and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day. [Emphasis added.]

There is no mob without the members of the mob, as I’ve said before. So [Priola’s attorney] made a point in his sentencing memorandum, that if we were to take your participation out of that group, that everything would have still happened; your actions did not materially contribute. But they did, because you were there. And people act in ways that they would never act alone when they’re with a group, or when they’re with a mob, and when emotions are involved.

Chutkan then sentenced Priola to a guidelines sentence of 15 months in prison. 

Ten months later, on Aug. 1, a federal grand jury in the District of Columbia charged Donald Trump with four crimes relating to attempts “to overturn the legitimate results of the 2020 presidential election.” The clerk’s office randomly assigned Judge Chutkan to preside.

On Sept. 11, Trump moved for recusal of Chutkan, citing her remarks during two prior sentencings of Jan. 6 defendants, including Priola’s, which was the main source of contention. Trump objected particularly to Chutkan’s phrase: “It’s a blind loyalty to one person who, by the way, remains free to this day.”

“The public meaning of this statement is inescapable—President Trump is free, but should not be,” Trump’s attorneys write. “As an apparent prejudgment of guilt, these comments are disqualifying standing alone.”

The inference Trump’s attorneys draw from Chutkan’s remark requires Chutkan to step aside, they argue, under the language of the first clause of the federal statute relating to judicial recusals, 28 U.S.C. § 455(a):

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Courts judge the merits of a recusal motion under § 455(a) using an objective standard. The test is “whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality.”

Despite an initial, facial plausibility to Trump’s argument, his claim cannot survive a cursory glance at the relevant case law. It’s not a close question. (I will describe the facts of the second disputed sentencing shortly.) 

The obstacle barring Trump’s claim is the U.S. Supreme Court’s 1994 ruling in Liteky v. United States. There, Justice Antonin Scalia, writing for the Court, held that judges’ in-court statements about cases before them will almost never amount to “bias” sufficient to warrant recusal.

First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. ... 

Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. [Emphasis added.]

This is, as Scalia goes on to explain, in part a pragmatic rule arising from the fact that judges are constantly called upon to express opinions in the course of, well, judging:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task. As [Second Circuit] Judge Jerome Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." ... Also not subject to deprecatory characterization as "bias" or "prejudice" are opinions held by judges as a result of what they learned in earlier proceedings. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant. [Emphasis added.]

This binding Supreme Court law all but disposes of Trump’s motion. To be clear, Scalia does leave open the possibility that in-court statements could, in rare circumstances, “display [such] a deep-seated favoritism or antagonism” as to warrant recusal. But the example he gives—a judge’s display of gratuitous ethnic bias toward a party—just further demonstrates the gaping chasm between the showing required and what Trump has offered:

An example of the latter [i.e., deep-seated antagonism toward a party] ... is the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U. S. 22 (1921), a World War I espionage case against German-American defendants: "One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans" because their "hearts are reeking with disloyalty."

Apparently recognizing the insuperable bar Liteky poses to Trump’s attempt to base his recusal motion on Chutkan’s in-court statements, his lawyers suggest in their motion that “the public can reasonably understand that [Chutkan’s] views on [ex-] President Trump derive from extrajudicial sources.” By “extrajudicial sources,” they mean sources outside the context of the cases before her. But they offer not a shred of support for their claim. And as the government observes in its response, there is every reason to believe otherwise. There were no fewer than nine other Jan. 6 defendants who also sought Chutkan’s leniency at sentencing on the grounds that they believed they were serving Trump in some fashion when they committed their crimes.

In one of those other sentencings, to be clear, Trump does take issue with another statement Chutkan made. But, when we examine that one, Trump’s quibbles again only highlight the distance between Chutkan’s measured remarks and the district judge’s shocking slur in Berger.

The second sentencing Trump complains about is that of defendant Robert Scott Palmer. He pleaded guilty to assaulting officers with a dangerous weapon. After attending Trump’s rally at the Ellipse, Palmer joined the siege on the Capitol while wearing a “Florida for Trump” hat. According to the government’s summary in its response to Trump’s recusal motion, Palmer threw a plank at officers; sprayed the contents of a fire extinguisher at them until it was empty; threw the fire extinguisher at officers; and then assaulted another group of officers with a four-to-five-foot pole, throwing it at them like a spear. Seeking leniency for his client, Palmer’s attorney argued that Palmer had gone to the Capitol at Trump’s “behest.” Palmer’s attorney also asked Chutkan to consider the fact that “the riot almost surely would not have occurred but for the financing and organization that was conducted by persons unconnected to Mr. Palmer who will likely never be held responsible for their relevant conduct.”

In response to these specific arguments, Chutkan said:

And it is true, Mr. Palmer -- you have made a very good point, one that has been made before—that the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged.

That is not this court’s position. I don’t charge anybody. I don’t negotiate plea offers. I don’t make charging decisions. I sentence people who have pleaded guilty or have been convicted. 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. And you’re correct in that no one who was encouraging everybody to take the Capitol has been charged as of yet, but I don’t think that fact means that you should get a lower sentence. 

The fact is that there are lots of people who agreed with you, who didn’t like the results of the election, who perhaps thought the election was stolen in some way.

They stayed home. ... When you left that rally and went to the Capitol and saw what was going on and engaged in combat with those law enforcement officers, that’s what you’re being punished for.

So you have a point, that the people who may be the people who planned this and funded it and encouraged it haven’t been charged, but that’s not a reason for you to get a lower sentence. 

What exactly is Trump complaining about here? It’s Chutkan’s demure aside: “I have my opinions.” Trump speculates in his motion that she was intimating that she thought “President Trump should be charged.”  By the standards of Liteky, however, Chutkan’s four-word parenthetical soliloquy is just risibly inadequate to warrant recusal.

Finally, still other precedents just bury Trump’s claim. The government points to, for instance, an astoundingly on-point precedent from the en banc U.S. Court of Appeals for the D.C. Circuit. It’s binding not only on Chutkan here, as she rules in the first instance on Trump’s recusal motion, but also on any appellate panel that might later review her decision. It arose in the context of the Watergate prosecutions. U.S. District Judge John Sirica sat on several Watergate-related matters, including the prosecution of seven of the first defendants, before later presiding over the trials of the three top defendants: former Attorney General John Mitchell, former assistant to President Nixon H.R. Haldeman, and former presidential adviser John Ehrlichman. These defendants moved for recusal on the grounds that Sirica had “expressed a belief that criminal liability extended beyond the seven persons there charged,” according to the appeals court. Sirica’s statement was a much more explicit version of what Trump speculates Chutkan was hinting at during the Priola sentencing: that she felt higher-ups should be charged in connection with the event at hand.  

Yet in the Watergate context, the court gave this claim the back of its hand. Sirica’s remarks were just part of “prior judicial rulings,” it held, adding that “a disabling prejudice” could not “be extracted from dignified though persistent judicial efforts to bring everyone responsible for Watergate to book.” (The federal statute laying out recusal standards, 18 U.S.C. § 455, was amended to add the “appearance-of-impropriety” standard after Sirica declined to recuse himself in 1974, but before the appeals court upheld Sirica’s decision in 1976. In footnote 297, the D.C. Circuit noted that “even under the appearance-of-impropriety standard the events in question pass muster.”)

What then, the reader may ask, are the corresponding fact patterns that Trump’s lawyers highlight in which a judge’s in-court statements about cases before them did lead to recusal? Tellingly, Trump offered no recitations of any such fact patterns at all. The closest he comes is in his reply brief, when he mentions a D.C. Circuit case that removed the military judge presiding over the prosecution of Khalid Sheikh Mohammed. The judge had expressed an opinion concerning the guilt of the accused, in violation of military rules governing judicial bias, when he said: ““We’ve got the major conspirators in the 9/11 attacks still at Guantanamo Bay—Khalid Sheikh Mohammed and four others … [t]o compare Ghailani to Khalid Sheikh Mohammed, they’re two totally different types of cases. And the magnitude of what they did is very different.”

But Trump does not disclose in his brief that the military judge’s statements were, to begin with, being judged under a military rule that, the D.C. Circuit noted, was “stricter” than the “impartiality-might-reasonably-be-questioned” standard applicable here. More important, Trump also doesn’t disclose that the precedent does not concern in-court statements at all. The military judge had made his statements during a magazine interview before his commission even began—meaning that the source of his opinions could only have been extrajudicial. This factor was crucial to the holding. The D.C. Circuit writes:

While the Rule [902(b)(3) of the Rules for Military Commissions] contains an exception for statements made "in the performance of duties as military judge in a previous trial of the same or a related case," that has no application here, as Judge Silliman's statements were not made "in the performance of duties as military judge" but before he was ever appointed to the CMCR.

Most of Trump’s other citations, in fact, are to cases in which recusals were required due to conflict-of-interest situations. These are simply inapt to the case at hand. The main D.C. Circuit case he relies on, for instance, concerned a military judge who, while presiding over a prosecution led by a mixed team of Justice Department and Defense Department lawyers, applied for a job with the Justice Department while the case was playing out without disclosure to the defendant—going so far as to highlight his role in that case in his job application. Another case Trump cites, from the Fifth Circuit, concerned a judge who had business dealings with the plaintiff’s lawyer and whose father was senior partner in the plaintiff’s lawyer’s firm.

One precedent Trump cites does allude to a different case in which a district judge’s in-court statements did suffice to require recusal—though Trump’s attorneys do not draw attention to that fact-pattern in their motion. Perhaps they chose not to because, again—like the judge’s gratuitous slur on German Americans in Berger—those facts only sharpen the contrast between the extreme conduct required to merit disqualification and the very measured, unexceptional conduct Chutkan exhibited here.

That case, from the Third Circuit, was a personal injury suit on behalf of the estate of a man who had allegedly died from cigarette-related illness. The estate was invoking the crime-fraud exception in order to try to pierce the attorney-client privilege that the tobacco industry said shielded records from the now-notorious Council for Tobacco Research (CTR). The plaintiffs alleged, and Judge H. Lee Sarokin of New Jersey was persuaded, that CTR was a fraudulent outfit, overseen by tobacco industry attorneys, that funded research the industry hoped to use in litigation to argue that the dangers of smoking were not yet proved.

When Judge Sarokin ruled, he prefaced his opinion with a searing and emotional indictment of the industry that grabbed headlines around the country:

In the light of the current controversy surrounding breast implants, one wonders when all industries will recognize their obligation to voluntarily disclose risks from the use of their products. All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety, and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity!

As the following facts disclose, despite some rising pretenders, the tobacco industry may be the king of concealment and disinformation.

On these unusual facts, the Third Circuit “agonizing[ly]” decided to remove Sarokin from the case. Of course, since this happened in 1992, two years before Liteky, it’s unclear whether even Sarokin’s remarks would warrant recusal today.

But even assuming they would, the case only highlights how benign Judge Chutkan’s remarks were by contrast. Trump seeks recusal because Chutkan said, “I have my opinions, but they are not relevant.” Or, alternatively, because she said—with incontestable accuracy—“It’s a blind loyalty to one person who, by the way, remains free to this day.”


Roger Parloff is a journalist based in Washington, D.C. In recent years, he has regularly contributed to Yahoo Finance and Air Mail News, and has also been published in The New York Times, ProPublica, New York, and For 12 years, he was the main legal correspondent at Fortune Magazine. He is an attorney who no longer practices. He is a senior editor at Lawfare.

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