A Lightning Round

U.S. District Judge Tanya Chutkan. Photo: Diego M. Radzinschi/ALM

The cathedral bells are tolling in the distance here in Florence, and the sun is about to peek out, so I want to get out there and explore. I’ll make this quick.

So let’s do a lightning round! I’m following three stories currently—one in Congress and two in our courts.

Congressional showdown… and countdown

There is as yet no deal on the budget, with the deadline of September 30th to reach a deal to fund the government now looming large. The GOP-controlled House, under Speaker Kevin McCarthy, has rejected the Senate’s proposed continuing resolution (CR), which includes relief for disaster victims and aid to Ukraine. McCarthy is still hoping for passage of a House version of a CR. The problem is, there is currently no bill in the House to continue to fund the government that can garner the support of enough Republicans to pass on its own. Indeed, there are still some 10 hard “no” votes on any CR, and the hardliners seem bent on shutting down the government to bring maximum show of their strength.

In short, the Republicans are playing dangerous politics with millions of people’s lives, including families that depend on government paychecks. Government agencies are being forced to prepare contingency plans and are notifying employees whether they will be among those furloughed or asked to work without pay. Biden has warned that a shutdown would be “disastrous.” But with one now very likely, Republicans are now scrambling to find reasons and talking points to blame the paralysis on the Democrats. But make no mistake: We are here because McCarthy cannot control his party and has agreed on the behalf of the most radical elements to renege on the deal he struck back in May.

Judge Chutkan says nope

Donald Trump had filed a motion in federal court requesting that Judge Tanya Chutkan recuse herself due to an alleged inability to fairly conduct the trial due to bias against the defendant. I wrote about the arguments advanced by the defense, such as they are, in an earlier piece. And on Wednesday night Judge Chutkan rejected those arguments soundly, with reasoning that essentially tracked what I had discussed.

She did not do so politely. The New York Times described her 20-page order as a “strongly worded” one that “chided Mr. Trump’s lawyers for putting words in her mouth.”

There were two main statements at issue in the recusal motion. Chutkan had remarked in an earlier case about how the insurrectionists who had “mobbed” the Capitol showed “blind loyalty to one person who, by the way, remains free to this day.” And at another defendant’s hearing, Chutkan had remarked that the “people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged.”

Both of these statements were literal facts, and they were given in the context of sentencing hearings where the defendants were seeking to blame others—including those who had not even been charged. As Chutkan noted, she had never said that Trump ought to be prosecuted and imprisoned, as the lawyers had claimed.

The recusal motion was always a stretch, and Judge Chutkan properly denied it. Trump’s lawyers probably can’t appeal it right away, though this team may still try through an extraordinary procedure called a “writ of mandamus.” But they need to be careful. If they start losing steadily before the Court of Appeals or even the U.S. Supreme Court on these kinds of longshot motions, the courts may grow frustrated with them, even more than they already are.

Trump takes aim at the judge in NY case

There’s a motion pending for a gag order over the entire January 6 federal case in D.C., brought by Special Counsel Jack Smith, on grounds that Trump’s public statements are threatening witnesses and court officials as well as tainting the jury pool. Although that motion is in federal court, Trump’s public attack Wednesday night about a state court judge in his civil fraud matter in New York may wind up serving as further evidence of the danger he poses, both to the orderly administration of justice and to particular individuals.

In a post on “Truth Social,” Trump came directly for Judge Arthur Ergonon, exclaiming that “WE NEED JUSTICE IN OUR COUNTRY” before calling Ergonon a “political hack” who “must be stopped.”

As Prof. Joyce Vance noted on the Twitter / X platform:

If a defendant in one of my cases had done this, I don't believe he'd just get a pass from the courts [and] certainly not from the prosecutor. Trump has a pattern of disregard for the danger he places the community in.

These types of threats always need to be taken in context, and here that weighs strongly against Trump. He is already on notice that his attacks upon the character of the judges have led his followers to issue threats, including a racist death threat in the case of Judge Chutkan. In the law, such notice comes into play because it becomes more reasonably foreseeable that someone else might do the same should Trump make a similar threat against another judge.

Trump has a right to defend himself, but that right lies primarily in court, not via threats made via public missive. As a criminal defendant, his broad rights to speech are already curtailed by way of pre-trial agreement. We shouldn’t have to wait until there is actual violence or bloodshed at the hands of a MAGA loyalist to restrain his dangerous attacks.

Judge Chutkan will have the first crack at possibly, and hopefully, gagging Trump in some way. But we should be under no illusions that he will feel bound by her order. Like Kevin McCarthy in the House, who cannot control his party, Trump cannot control his behavior, and it will lead inevitably to a showdown where the stakes go much, much higher.