With Donald Trump’s latest filing urging U.S. District Judge Tanya Chutkan’s recusal, the federal judge overseeing the election interference case in Washington can now decide whether she’ll step aside. But the argument advanced by the former president’s legal team shows she doesn’t have to.
To understand why, consider that recusal here may come down to a distinction between “extrajudicial” and “intrajudicial” — meaning, out-of-court vs. in-court. Trump argues Chutkan’s comments in other Jan. 6 cases — in which he claims she suggested he should be charged — stem from extrajudicial sources, while special counsel Jack Smith’s team deems them intrajudicial.
The distinction matters because if the sources were intrajudicial, then Trump faces a higher bar for recusal — he would need to show a deep-seated animosity on Chutkan’s part, which he probably can’t do.
So, according to Trump’s legal team, where did Chutkan get her information if not from other Jan. 6 cases? His lawyers wrote in their Sunday filing:
Certainly, like many Americans, Judge Chutkan watches the news and is otherwise exposed to information that helps form her opinions about public issues matters outside of her judicial role. Therefore, it is not surprising that the prosecution points to no circumstances whatsoever supporting their argument that the Disqualifying Statements are intrajudicially sourced.
It’s true that Chutkan probably consumes news and is otherwise exposed to information outside of court. But it’s not true that the prosecution didn’t point to any intrajudicial sources for her statements.
In fact, the special counsel’s filing to which Trump just responded had noted that he took Chutkan’s comments out of context — the context being that Chutkan, like other Washington judges, had presided over multiple Jan. 6 cases and thus “gained knowledge about the events of January 6 and insight about the persons charged based on its [Chutkan’s] daily administration of those cases.” For example, prosecutors wrote, Chutkan learned that “numerous individuals charged with January 6 crimes attempted to minimize their actions and spread blame to others, including to defendant Trump and to the mob that each rioter joined at the Capitol.” It was against that backdrop, Smith’s team explained last week, that in the comments Trump challenges as disqualifying, made while sentencing lower-level Jan. 6 defendants, Chutkan “was appropriately responding to — and ultimately rejecting — a common argument raised by scores of January 6 offenders: that they deserved leniency because their actions were inspired by, or were not as serious as, those of others who contributed to the riot but had not been held responsible — including former president Donald J. Trump.” Of course, in deciding whether to recuse, Chutkan can speak for herself about the source of her comments — and perhaps she’ll do so in explaining her decision. That decision could come any day now, though she may wish to hold a hearing on the matter first, as Trump’s lawyers requested in their latest filing. But whenever she decides, don’t be surprised if the extrajudicial vs. intrajudicial distinction plays a role.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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