Trump strategy creates no-win 'dilemma' for Judge Chutkan with competing motions for gag order and recusal

 September 22, 2023

The federal judge overseeing the prosecution of former President Donald Trump is currently considering two competing motions in the case -- one from Special Counsel Jack Smith seeking a gag order on Trump versus one from Trump calling for the judge's recusal.

Those two motions have created a sort of no-win "dilemma" for District Judge Tanya Chutkan in which Trump stands to benefit to some extent regardless of how she rules on the separate requests, according to an MSNBC legal analysis op-ed.

Trump obviously wins if Chutkan denies Smith's requested gag order and/or recuses herself. Still, he also likely prevails in the court of public opinion if she grants Smith's request to silence him and/or refuses to recuse herself, as that would bolster Trump's narrative that his free speech rights have been infringed by an overtly biased and partisan judge.

Trump's recusal motion

On Sept. 11, former President Trump's attorneys filed a motion for recusal aimed at Judge Chutkan that accused her of having prejudged Trump's alleged criminal culpability and harboring a political bias against him, as evidenced by her own statements in reference to Trump while sentencing defendants in Jan. 6 Capitol riot cases.

They argued, "There is little doubt that reasonable members of the public 'might,' in viewing Judge Chutkan’s statements, believe she has prejudged both the facts pertinent to this case and President Trump’s alleged culpability."

"Public statements of this sort create a perception of prejudgment incompatible with our justice system," the attorneys wrote at another point. "In a case this widely watched, of such monumental significance, the public must have the utmost confidence that the Court will administer justice neutrally and dispassionately. Judge Chutkan’s pre-case statements undermine that confidence and, therefore, require disqualification."

Smith's gag order motion

Just a few days later, on Sept. 15, the motion for a gag order against Trump -- and to a lesser extent, his attorneys, too -- was unsealed to reveal Special Counsel Smith's argument that Trump's alleged history of publicly criticizing, intimidating, and threatening judges, jurors, prosecutors, and witnesses warranted a court order to silence him.

"Since the indictment in this case, the defendant has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses," the prosecutors argued. "Like his previous public disinformation campaign regarding the 2020 presidential election, the defendant’s recent extrajudicial statements are intended to undermine public confidence in an institution -- the judicial system -- and to undermine confidence in and intimidate individuals -- the Court, the jury pool, witnesses, and prosecutors."

As such, the special counsel's proposed gag order "would include (a) statements regarding the identity, testimony, or credibility of prospective witnesses; and (b) statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating."

Trump's strategic victory begrudgingly acknowledged

In the MSNBC op-ed -- co-authored by a former Senate Judiciary Committee law clerk, a former federal prosecutor, and a former public defender, none of whom made any effort to disguise their overt bias against the former president -- it was begrudgingly acknowledged that a "sneaky" Trump had apparently succeeded in boxing in Judge Chutkan to a seemingly unwinnable dilemma.

As it turns out, despite the Sept. 15 date of the gag order's filing, that motion had actually been filed under seal 10 days earlier on Sept. 5, which means that Trump's recusal motion, rather than precipitating Smith's gag order request, was actually a strategic response to that filing.

"This sequence has been omitted or underemphasized in most of the commentary surrounding both motions, but it is essential to understand Trump’s gamesmanship. It seems that the Trump team’s response to Smith’s request for the gag order was not merely to directly oppose it, but also to try to paint Chutkan as biased before she rules on the gag order," the op-ed stated.

To be sure, the co-authors made it clear that they supported imposing a gag order on Trump and rejected his call for Chutkan's recusal as they decried the former president's tendency to publicly criticize those whom he views as opposed to him, yet they nonetheless had to admit that Trump's apparent plan to neutralize the judge and curry favor with the public seemed to have worked out.

"With that context, given the singular nature of this case and Trump’s public profile, Chutkan has been confronted with a unique dilemma: To not impose the gag order may allow the intimidation of potential witnesses and jurors, but imposing the gag order provides further grist for Trump’s public narrative," they surmised. "Moreover, compounding her task is the question of how any gag order against Trump might be enforced."

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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