Political Legal Lightning Round!

Judge Tanya Chutkan and ex-president Donald Trump. Photos courtesy of MSBNC.

Multiple stories in the news right now are political with legal ramifications, or legal with political ramifications. So for this Friday, let’s play a Political/Legal (or Legal/Political) Lightning Round: Set your timers…and go!

Recusal or refusal?

Trump’s lawyers have thrown a Hail Mary demanding the recusal of Judge Tanya Chutkan from the federal January 6 case in D.C. against their client. The thrust of their argument is that, due to Judge Chutkan’s prior statements in other cases, the “public will reasonably and understandably question whether Judge Chutkan arrived at all of her decisions in this matter impartially.” Trump’s lawyer John Lauro wrote that her comments “unavoidably taint” her handling of the case, and that “the law and the overwhelming public interest in the integrity of this historic proceeding require recusal.”

Here are the statements Lauro has focused on, which Judge Chutkan made during sentencing hearings for two different January 6 defendants:

“The people who may be the people who planned this and funded it and encouraged it haven’t been charged….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.” 

The rioters “were there in fealty, in loyalty, to one man — not to the Constitution. It’s a blind loyalty to one person who, by the way, remains free to this day.”

So is this bad? Is she going to have to recuse herself from the case?!

Ding! Answer: No, not likely at all. 

Why? Let’s look at her statements directly. Do they mention Trump? No. Are they factually correct? Yes. So that’s a pretty big initial hurdle which Lauro has failed to cross. Judge Chutkan wasn’t expressing an opinion; she was stating a fact, and doing so without direct reference to the current defendant.

Also, these statements are—surprise, surprise—cherry-picked and devoid of any context. In both these January 6 cases, the defendants had raised questions about why their sentences should be so harsh when they were simply carrying out directives from their president. Judge Chutkan was responding to their arguments and setting the record straight about why their arguments were unpersuasive. One key part of that record was that the ex-president hadn’t been charged at the time. That issue wasn’t before her.

Chutkan has presided over dozens of January 6 cases, where defendants frequently tried to invoke Trump as a get-out-of-jail-free excuse. Chutkan rejected that line of defense and their attempts to shift blame to Trump. Her statements, in this context, were the opposite of what Lauro is implying.

The government cited two examples of cases where recusal motions were denied under similar circumstances. The first was in the Watergate-era trial of H.R. Haldeman. The judge in Haldeman’s case had presided over many other Watergate matters and had expressed a belief that criminal liability extended beyond the persons charged. The D.C. Court of Appeals determined that recusal was unwarranted because the judge’s challenged views had stemmed from proceedings that had previously occurred in his own courtroom. The same situation is present here.

Prosecutors also showed how rare it is to force recusal. Even when a judge shows outright hostility, it’s hard to argue that recusal is required. That happened when Judge Emmet Sullivan said to retired Gen. Michael Flynn, “[You] arguably…sold your country out.” This opinion, directed right at the defendant, wasn’t enough for the D.C. Circuit, and it rejected a motion to recuse Judge Sullivan.

It’s hard to see how Judge Chutkan’s truthful statements, said in her own courtroom in response to arguments for more lenient sentences because of Trump, would operate to disqualify her.

Hunter Biden: The unlikely Second Amendment hero

Special Counsel David Weiss, facing a ticking clock under the Speedy Trial Act and apparent political pressure from the Republican Party to do something dammit, decided to indict Hunter Biden on (checks notes) three interrelated gun charges.

So is this decision politically driven?

Ding! Answer: Yes. Hunter Biden simply wouldn’t be facing these charges if he were not the president’s son. 

Some quick facts on this:

The younger Biden is being charged with providing false information on a federal application for a handgun by failing to disclose his drug use. Ironically, had he bought the handgun at a gun show, instead of from a federally licensed gun dealer, no such application or disclosure would have been needed.

He is also being charged with illegally possessing a weapon, which logically flows from the fact that he allegedly didn’t legally obtain it. His possession lasted 11 days because Hallie Biden, his brother Beau’s wife, threw it out, worried that Hunter might use the gun to take his own life.

If convicted, he could face up to 25 years in prison and $750,000 in fines. But as the New York Times noted, he would be considered a nonviolent, first-time offender. Such defendants don’t get slapped with serious prison time, at least not normally.

Here’s another big thing to consider. This crime is nearly always charged as something tacked on to some bigger crime, like murder or robbery. It’s almost never used to prosecute someone on its own. Just imagine how many people, especially in gun-loving red state America, are unlawful users of or addicted to controlled substances while in possession of a firearm. 

That means the charges are open to attack as “selective prosecution.” Hunter Biden’s lawyer, Abbe Lowell, will seek to show that his client is being unfairly targeted simply because of his last name.

The record seems to indicate something is seriously amiss. The parties had reached a plea deal in principle where Biden would do no time and would enter a program with the gun charge held in abeyance. But after Republicans howled that this punishment was too light, that deal fell apart, through no fault of Hunter Biden. Now the same prosecutor, who was appointed by Trump and kept on by President Biden to avoid the appearance of impropriety, and who recently requested and received Special Counsel status from Merrick Garland, is bringing the same basic charges.

So what changed? The law? The facts? Nope. Just the political environment. 

Trump loves to cry “election interference” because there are now 91 federal and state charges against him. This is untrue, but by contrast the charges against Hunter Biden, which aren’t normally brought against a nonviolent drug user, appear designed to dirty the president up and cloud the campaign landscape.

One ironic fact: There’s a case out of the conservative Fifth Circuit that has held the law in question here unconstitutional under prior Supreme Court precedent. The statute, 18 U.S.C. § 922(g)(3), bars anyone who is an "unlawful user of or addicted to any controlled substance” from possessing a gun. 

“Our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage,” the Fifth Circuit ruled back in August.

That case isn’t binding precedent upon a Delaware federal court, but if the Supreme Court were to affirm it, that could affect Hunter Biden’s case directly. Still waiting for the NRA to rush to Hunter Biden’s defense. No? Anyone?

Trump interview goes very badly

His lawyers have no doubt begged him not to give interviews, but Donald Trump proceeded with one yesterday with Megyn Kelly on her Sirius XM show. Perhaps the stable genius had simply forgotten what happened eight years ago when she asked him a debate question about his treatment of women.

Kelly had said to Trump, “You’ve called women you don’t like fat pigs, dogs, slobs and disgusting animals.” Trump didn’t like being called out on that at all, and he later criticized the then-Fox host, telling CNN, “There was blood coming out of her eyes, blood coming out of her wherever.”

What a charmer. Given this history, it was somewhat surprising that Trump agreed to an interview. Kelly is known as a staunch, even extreme conservative, so Trump probably figured he was safe. So was he safe?

Ding! No. Megyn Kelly apparently is out for blood, but it was Trump’s.

Here are some gems from the interview:

Trump suggested once again that it was his right to hold on to the top-secret materials. “I’m allowed to take these documents, classified or not classified. And frankly, when I have them, they become unclassified. People think you have to go through a ritual. You don’t — at least in my opinion, you don’t.” (Narrator: You do have to go through the “ritual.” There is no such thing as declassifying something just by thinking about it. And it doesn’t matter anyway in this case what you did or did not do to declassify documents.)

Kelly pressed on Trump’s noncompliance with the federal subpoena. “[E]ven if I think they’re accusing me of a fake crime, if I get a subpoena, I have to comply,” Kelly said, adding later, that “once you get a subpoena you have to turn them over.” Trump responded, “I don’t even know that, because I have the right to have those documents. So I don’t really know that.” (Narrator: The question under the Espionage Act is whether the defendant willfully retained documents. Claiming he has a right to the documents as his reason for why he didn’t return them is evidence of his guilty intent.)

On the subject of the top secret Iranian war plan he had shown to third parties, Kelly asked, “What were you waving around in that meeting? Because it certainly sounds like it was an attack plan.” Trump responded, “I’m not going to talk to you about that because that’s already been, I think, very substantiated, and there’s no problem with it….I’m allowed to do what I want to do. I’m allowed to have documents.” (Narrator: Trump might have assumed he was asserting the Fifth by refusing to talk about it, but that constitutional protection doesn’t apply in the context of Kelly, who is a private citizen. Trump’s refusal to answer the question in an interview can actually be used against him in court, as can all of these other admissions.)

That’s it for now! Thanks for playing, and have a terrific Friday and a great weekend.

— Jay

* * *

I hope you have enjoyed this political/legal lightning round! If you appreciate my work here and believe that good content that you read often should receive your financial support, consider upgrading your account today if you’re financially able! I rely wholly on the voluntary support of my readers, and I deeply appreciate all who have stepped up to help.