April 17, 2024

Donald Trump’s legal team on Monday asked the federal judge overseeing the 2020 election interference prosecution against him to remove herself from the case, arguing that her previous public comments after the former president’s culpability in the January 6 Capitol attack was disqualifying.

Related: Georgia report reveals jury called for criminal charges against Lindsey Graham and others

The recusal motion, filed to and against the US district judge Tanya Chutkan, faces major legal hurdles: to succeed, Trump must show a “reasonable person” would conclude from just her remarks – but not any of her actual rulings – that she was unable to preside impartially.

Trump has long complained that the judge assigned to the case was biased against him because of her previous comments about Trump in other January 6 riot defendant cases and his legal team weighed filing the motion for weeks, according to two people familiar with deliberations.

The nine-page motion identified two episodes where Chutkan remarked on her opinion about Trump’s responsibility in instigating the Capitol attack, which Trump’s lawyers argued gave rise to the appearance of potential bias or prejudice against the former president.

The first instance came in October 2022 when she said, referring to January 6: “And the people who mobbed that Capitol were there in fealty, in loyalty, to one man… It’s a blind loyalty to one person who, by the way, remains free to this day.”

Trump’s lawyers argued that those remarks, which came during sentencing of a rioter who stormed the Capitol, suggested Chutkan believed Trump should have been prosecuted and jailed in a pre-judgement of guilt that alone was disqualifying.

The second instance was when the judge told another January 6 rioter in December 2021: “The people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged,” adding, “I have my opinions,” but that was out of her control.

Trump’s lawyers argued that those remarks suggested Chutkan agreed with that rioter’s defense attorney, who had said Trump had falsely convinced his supporters that the 2020 election was fraudulent and that they needed to take steps to stop the peaceful transition of power.

It was uncertain whether the judge’s two public statements would satisfy the high bar for removal. Notably, the motion did not complain about any of Chutkan’s pre-trial rulings to date, perhaps because in a handful of instances, she has ruled against prosecutors.

The judge, an Obama appointee, came into the case with a reputation of being particularly tough in January 6-related prosecutions, including handing down sentences in some prosecutions longer than had been requested by the justice department.

Still, Chutkan is far from the only federal judge in DC – or elsewhere in the country, for that matter – who has suggested Trump might have culpability for the Capitol attack during sentencing hearings.

In June, US district judge Amy Berman Jackson told the January 6 rioter Daniel Rodriguez, who she sentenced to 12 years in jail for using a Taser on DC Metropolitan police officer Michael Fanone, that he had been radicalized by “irresponsible and knowingly false claims that the election was stolen”.

Filing a recusal motion is not necessarily uncommon and federal judges tend not to take offense, former prosecutors and defense attorneys have said, even if Trump files them almost as a matter of routine. Recently, Trump sought to recuse the state court judge in his Manhattan criminal case, which was denied.

Should the judge decline to recuse herself, legal experts said Trump could then seek to have the decision reviewed at the US court of appeals for the DC circuit, including through the rare move to petition for mandamus, a judicial order to a lower-court judge compelling an action.

The appeal could be accompanied with a motion to stay Chutkan’s rulings pending appeal, the legal experts said, which could delay the pre-trial process and push back the current trial date set for March 2024 while that litigation continues.

Such a postponement would be beneficial to Trump, who has made clear that his overarching legal strategy for each of his criminal cases is to seek delay – preferably until after the 2024 presidential election as part of an effort to insulate himself from the charges.

The consequences of an extended delay could be far-reaching. If the case is not adjudicated until after the 2024 election and Trump is re-elected, he could try to pardon himself or direct the attorney general to have the justice department drop the case in its entirety.

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