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Impeachment and Recusal
There’s been lots of tough talk from House Republicans about impeaching Joe Biden recently. But what House Republicans are contemplating is political theatrics, not a solemn impeachment proceeding based on evidence.
Impeaching is the Congressional version of a prosecutor indicting. An impeachment is a charging document; it charges one or more people with an impeachable offense, and that’s done in the House of Representatives. Then, the person who is name is tried on those charges before the Senate, which determines whether they are convicted on the articles of impeachment. In this case, the hard-right wing of the Republican party wants to impeach Joe Biden, which means they are supposed to have provable allegations of high crimes and misdemeanors to bring against him. But that’s the problem. They have speculation, rumor, and innuendo. Despite the best efforts to come up with something, Republicans are still empty-handed.
Even key members of their own party think so. Republicans have a wafer thin five-member majority in the House, but something like twenty or thirty of their members, depending on who’s doing the counting, have expressed doubts about impeachment. Even some Republicans don’t know what the provable crimes and misdemeanors Joe Biden has supposedly committed are.
It gets even more offbeat. In addition to a baseless effort at impeaching Biden, Kevin McCarthy’s future as Speaker of the House also seems to be in question. His sometime ally Matt Gaetz recently told a conservative radio host that the Republican majority in this House hasn’t lived up to his expectations and that when they return to session later this month, they must “seize the initiative.” He says, “that means forcing votes on impeachment. And if Speaker McCarthy stands in our way, he may not have the job long.” Gaetz added in a tweet, “Let’s hope he works with us, not against us.”
Gaetz’s faction is setting up a showdown. They’re suggesting they’re willing to shut down the government, which would happen if they refuse to work with other Republicans to pass the federal budget by the end of the month. California Congressman Adam Schiff put it succinctly, “MAGA Republicans are now threatening to shut down the government if there isn’t an impeachment inquiry into President Biden. This is extreme and dangerous— but it’s also par for the course in their unswerving devotion to Donald Trump.” So, there are lots of moving pieces here, including matters that are largely political, not legal.
But the process of impeachment itself is a legal matter. You don’t impeach a president as revenge over the impeachment of your own guy, at least that wasn’t the vision of the Founding Fathers when they wrote the Constitution. That’s a level of irresponsible childishness that has become commonplace in the politics of Trump, but which demands that it be called out for the breakdown of our Constitutional system that it represents.
While Gaetz, and others like Marjorie Taylor Greene, push for indictment, other Republicans, including some who don’t typically weigh in against that faction, have conceded there is no evidence that warrants an impeachment. For instance, Colorado Representative Ken Buck, a member himself of the House Freedom Caucus, had this to say about Greene’s push for indictment, “The idea that she is now the expert on impeachment or that she is someone who should set the timing on impeachment is absurd. The time for impeachment is the time when there’s evidence...That doesn’t exist right now.” Greene has said she is ready for impeachment proceedings to start this week.
Many Republicans who don’t remotely support Joe Biden have recognized that the evidence necessary for impeachment proceedings just isn’t there. South Carolina Representative Nancy Mace said on Sunday morning television that, “impeachment is just window dressing. It's not going to go anywhere." Arkansas Representative French Hill said that there wasn’t sufficient evidence of wrongdoing by Biden to commence impeachment proceedings. He noted that House committee chairs who are looking into the Biden family’s past foreign business dealings don’t have “detailed investigations and quality work.” He seems inclined to believe they should keep working—no supporter of Biden’s—but realistically acknowledged that the evidence is not there.
South Dakota Republican Dusty Johnson, who chairs a centrist group of House Republicans made a pragmatic legal point without conceding the political one, “There is a constitutional and legal test that you have to meet with evidence, [for impeachment]” he told CNN. “I have not seen that evidence, but I guess I’m not suggesting it doesn’t exist. I do think the fact that the committees continue to ask for additional documents suggests that they don’t think their evidentiary record is complete yet.” It would be like impeaching Barack Obama because you thought his birth certificate was phony even there was no evidence to suggest it and plenty to the contrary. Forbes reported that Representative David Joyce of Ohio told them that even after months of investigation, he doesn’t see “‘facts or evidence at this point’ that would support impeachment.”
McCarthy wanted the Speaker’s job, and now it will be up to him to determine how to navigate between Republicans who want to pass a budget full of cuts to Democratic priorities and those who are willing to shut down the government—delaying social security checks and “non-essential services,” so they can keep hunting for their great white whale and show their fealty to Trump. MAGA Republicans may want a vote on impeachment even if it’s doomed to fail, so that they can call out those who don’t support Trump (because, of course, that’s what all of this is about) and target them for primary opposition in the coming election cycle. But at some point—and I emphasize we have yet to see it with today’s Republican party—our politics have to be about more than just winning, if we’re going to continue as a Constitutional republic.
The White House has lawyered up—adding experienced practitioners and a war room environment to deal with the onslaught of political rhetoric in a fact-free environment that is coming at them from the direction of the Hill. This sparring benefits no one, certainly not the American people. And MAGA’s antipathy towards continuing to help Ukrainians in their fight against Russia could do grave damage to our national security and that of our allies.
Maryland Representative Jamie Raskin, the top Democrat on the House Oversight Committee summed it up like this:
“The first MAGA-directed Congress is by far the most reckless and least productive in decades…Instead of working on legislation to promote the common good or even just keep the government running, House Republicans are weaponizing their offices and exploiting congressional power and resources to promote debunked and outlandish conspiracy theories about President Biden. This is a transparent effort to boost Donald Trump’s campaign by establishing a false moral equivalency between Trump—the four time-indicted former president now facing 91 federal and state criminal charges, based on a mountain of damning evidence for a shocking range of felonies, including lying to the FBI, endangering national security by illegally keeping classified documents, and conspiring to subvert the U.S. Constitution—and President Biden, against whom there is precisely zero evidence of any wrongdoing whatsoever.”
But what do you do when your candidate is twice impeached and four times indicted? Apparently, MAGA Republicans will do anything to try and make it look like the score is even ahead of the general election. So here we are.
Trump, obviously looking for any way to avoid being a convicted candidate by the time the election rolls around, filed a motion to recuse Judge Tanya Chutkan, the federal judge handling the Special Counsel’s Washington D.C. indictment against him. The motion is nine pages long. You can read it here. The standard for a motion to recuse is whether a reasonable man (not a Trump supporter, just an average, objective member of the community) evaluating the judge’s conduct would believe she could give him a fair trial. It’s about the appearance of impropriety, as well as an actual bias.
Trump objects to comments Judge Chutkan has made while sentencing other January 6 defendants. His lawyers wrote, “Judge Chutkan has, in connection with other cases, suggested that President Trump should be prosecuted and imprisoned. Such statements, made before this case began and without due process, are inherently disqualifying. Although Judge Chutkan may genuinely intend to give President Trump a fair trial—and may believe that she can do so—her public statements unavoidably taint these proceedings, regardless of outcome. The public will reasonably and understandably question whether Judge Chutkan arrived at all of her decisions in this matter impartially, or in fulfillment of her prior negative statements regarding President Trump. Under these circumstances, the law and the overwhelming public interest in the integrity of this historic proceeding require recusal.”
That’s the correct standard, sort of. It’s a “reasonable person” standard—whether someone without an axe to grind would have confidence the judge is fair. But Trump overclaims the facts about Judge Chutkan’s conduct. He points to a sentencing where she said this about January 6, “This was nothing less than an attempt to violently overthrow the government, the legally, lawfully, peacefully elected government by individuals who were mad that their guy lost. I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb. And the people who mobbed that Capitol were there in fealty, in loyalty, to one man -- not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country; and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.”
Judge Chutkan made comments while sentencing in cases where Trump was not a defendant, but where defendants argued in their defense that they were following him when they went to the Capitol that day. Reading her comments in context, she does not make any assumptions about Trump’s guilt, as George Conway pointed out on Twitter tonight.
Chutkan’s comments are statements of fact. Trump’s lawyers draw the strongest inference they can from it and say that it is “an apparent prejudgment of guilt,” concluding that “these comments are disqualifying standing alone.” They conclude by arguing the context, that since Jack Smith works for Joe Biden, people may lack confidence in the outcome of the case if Judge Chutkan tries it.
This doesn’t make a lot of sense. For starters, recusal is, I’ll say it again, judged from the point of view of a reasonable person, not a Trump supporter. And Trump’s lawyers don’t evaluate the situation from the perspective of a reasonable person who has had the opportunity to see how Judge Chutkan, a former defense lawyer herself, has conducted proceedings so far in an even-handed fashion. Although Trump’s position isn’t frivolous, it’s not nearly as strong as his lawyers suggest, and he’s unlikely to win here. Trump is judge shopping for another Aileen Cannon, the Florida judge who weighed in so heavily for him that the 11th Circuit had to issue a stinging reversal. He is not entitled to a judge who is biased in his favor, just a fair one. He has that with Judge Chutkan.
We won’t have to wait long to learn what Jack Smith’s position is. Judge Chutkan responded with a minute order, which is an entry written on the docket (the listing of all of the pleadings and filings in the case), as opposed to the separately filed and uploaded orders we often see when a Judge sets forth a ruling and a justification for it. Minute orders are what judges use to issue quick rulings like Chutkan did here: “MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant's  Motion for Recusal, it is hereby ORDERED that the government shall file any opposition no later than September 14, 2023, and the defense shall file any reply within three calendar days from the filing date of the government's opposition.”
It’s highly unlikely Judge Chutkan will recuse herself, as much as she might want to sidestep all of the drama, to say nothing of the personal attacks that Trump’s criticisms have launched her way. Judges weigh recusal motions seriously in my experience, considering whether there is an appearance of impropriety if they keep the case, and also whether there is an undue burden on the other judges on their court if they don’t, stepping away simply because the allegation has been made without rigorously evaluating their fitness to continue on the case. Many of the judges in the District of Columbia have handled January 6 cases. If the analysis Trump’s lawyers have called for is applied to Judge Chutkan, it’s difficult to imagine a judge who could pass muster. Many of them have made comments similar to hers, while others have demonstrated less concern over the seriousness of defendants’ January 6 conduct. Granting Trump’s motion would lead to a situation where one side or the other could object to any replacement judge, underscoring that this is not a motion that should be granted.
Justice Alito, too, has been called upon this week to respond to a request that he recuse. It’s about a tax case the Court is about to hear argument in. Alito wrote a response refusing to do so after Senate Democrats demanded that he recuse himself because one of the attorneys arguing the case conducted the interviews of Alito that resulted in two articles about Alito’s work that were recently published in the Wall Street Journal, along with its editorial page editor. Alito objected to the Democrats’ suggestion there was a conflict, writing, “This argument is unsound. When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate.” He concluded, “there is no valid reason for my recusal in this case. There was nothing out of the ordinary about the interviews in question.”
It’s a little different from Judge Chutkan’s situation. One is about an actual conflict of interest, while the other is about an inference that some people, albeit perhaps not reasonable ones, would lack confidence in Chutkan. It would be ludicrous if Alito stayed on his case and Chutkan was forced to recuse from the Trump prosecution.
We’re in this together,
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