Trump's lawyers gambling on 'sneaky strategy' in battle with Judge Chutkan: legal experts

Legal experts are raising red flags about a motion by Donald Trump's legal team, calling it part of a "nefarious" plot to manipulate United States District Court for the District of Columbia Judge Tanya Chutkan into allowing their client to continue to incite his followers.

In a column for MSNBC, former prosecutor E. Danya Perry, attorney Josh Stanton, and Joshua Kolb, who served on the Senate Judiciary Committee, cited the move to get Chutkan to recuse herself at the same time that she is expected to rule on a limited gag order designed to keep the four-time indicted former president from intimidating prosecutors, witnesses and jurors.

Noting that any gag order runs the risk of being construed as a curtailment of the defendant's First Amendment rights, the three legal experts concluded she'll have to walk a tightrope when placing restrictions on Trump so that, if he is convicted for his efforts to overturn Joe Biden’s election victory, it won't become a central complaint in his inevitable appeal.

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As they wrote, "The solid foundation for a limited gag order may explain Trump’s motives in asking for Chutkan’s recusal. Legally, the recusal motion looks to be a non-starter. The bar for recusal is extremely high, judges have significant discretion, and nothing in Judge Chutkan’s record exhibits the requisite bias or appearance of bias necessitating recusal under the law."

However, "The timing of the recusal motion — a month after the indictment — also hints at Trump’s strategy. Chutkan’s remarks that supposedly showed her bias toward Trump were made before the August indictment, so the former president could have brought this motion sooner — for example, before Chutkan set the trial date. Yet he chose not to do so until after Smith’s office requested a gag order. "

According to their opinion piece, "As we saw in the battle over the trial schedule, the arguments that Trump’s lawyers make are not just intended for the judge, but also for a broader public audience. Public intimidation is a crucial tactic in Trump’s legal and political strategy, one he has deployed successfully in the past."

The three legal experts wrote that Chutkan should not back down because it could impact all four of his criminal trials.

"While there is no perfect solution, to avoid addressing Trump’s statements — which are clearly intended to spoil the possibility of a fair trial — would unfairly permit Trump to run roughshod over the judicial proceedings, and it also would incentivize the type of public framing Trump and his lawyers have engaged in so far, " they warned.

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