Trump Faces Uphill Climb to Get January 6 Case Moved out of D.C., Despite Judge’s Record, Biased-Jury Claims

In drawing U.S. District Judge Tanya Chutkan for his election-fraud case, Donald Trump’s indictment will be overseen by a federal judge known for being one of the harshest punishers of January 6 defendants, and a judge who has previously ruled against him.

The trial will also take place in Washington, D.C., a venue with one of the least advantageous jury pools in the nation for the former president.

But getting the case transferred to a different judge or moved to another venue will be an uphill climb for Trump’s legal team, according to legal experts who spoke with National Review. Trump’s attorney in the case has already suggested moving the case to West Virginia.

“The Trump team will have to assume that this trial will have to occur in Washington,” said Jonathan Turley, a George Washington University law professor and legal analyst.

Appellate courts, Turley added, are typically leery of motions to have judges recused, viewing them as attempts to “judge shop.” “The expectation of the appellate court is that trial judges can overcome their own bias,” he said.

Trump is expected to make a first appearance in the case on Thursday afternoon in front of a magistrate judge. Attempts to reach a Trump campaign spokesman were unsuccessful.

Chutkan, a Jamaica-born former assistant public defender and Obama appointee, was randomly assigned to the Trump case. She has been one of the harshest sentencers of January 6 defendants, according to media reports.

The Associated Press reported that Chutkan has sentenced at least 38 people involved in the January 6 riot, and that all of them have received prison sentences, from five days to ten years. And while some D.C. judges have tended to hand down lenient sentences to rioters, Chutkan “has matched or exceeded prosecutors’ recommendations in 19 of her 38 sentences,” according to the AP.

She previously ruled against Trump when he sought to block records from his administration from being turned over to the House January 6 Committee. “Presidents are not kings, and Plaintiff is not President,” Chutkan famously wrote, denying that Trump had executive privilege.

But being a harsh sentencer of rioters and previously ruling against the former president likely won’t be enough for a recusal, legal experts said. For a successful recusal motion, they said, Trump’s team will need a “mosaic” of “expressed animus” toward the former president.

“It’s going to require more than a single stray comment,” Turley said. “I’m sure they’re researching it now.”

According to Politico, Chutkan has “made her disgust and horror” over the January 6 riot clear, and she has noted that “no one accused of orchestrating the effort to subvert the election had been held accountable.” When one rioter noted that during a December 2021 sentencing, Chutkan said he made a “good point,” and added that “the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged.”

She even went so far as to explicitly reject the argument that January 6 rioters were being treated more harshly than Black Lives Matter rioters who engaged in similar conduct in major American cities in the summer of 2020.

“People gathered all over the country last year to protest the violent murder by the police of an unarmed man. Some of those protesters became violent,” Chutkan said while sentencing a defendant, according to a court transcript reviewed by Politico. “But to compare the actions of people protesting, mostly peacefully, for civil rights, to those of a violent mob seeking to overthrow the lawfully elected government is a false equivalency and ignores a very real danger that the January 6 riot posed to the foundation of our democracy.”

John Malcolm, vice president of the Heritage Foundation’s Institute for Constitutional Government, said Trump’s lawyers will be on the hunt for more examples of statements by Chutkan that could be perceived to be anti-Trump.

“It’s statements like that that his legal team can say, ‘Well, you have a demonstrated animus towards Donald Trump, and therefore he can’t get a fair trial from you, or at least there are reasons to doubt your impartiality,’” Malcolm said.

“Those kinds of motions usually fail,” he added, “but that is the standard that he would have to show is that her partiality could be reasonably questioned.”

Both Turley and Malcolm have expressed skepticism around the charges in this latest indictment. “One of the early tests of Judge Chutkan will be how she responds to the threshold challenge to the indictment. Some of us view this indictment as raising very serious threshold constitutional question,” Turley said.

“The Trump team will want to front-load the First Amendment issues,” he said. “Even if the judge rules against them, she will be asked to allow them the opportunity and time to take the issue up on appeal. How she handles those threshold challenges will be instructive.”

John Lauro, Trump’s attorney for the election-fraud case, has painted the indictment as an attempt to censor Trump and to criminalize his free speech. When asked on CBS This Morning on Wednesday if he would seek a venue change, Lauro said he “absolutely” would.

“There are other options. West Virginia is close by,” Lauro said. “It’s more diverse than Washington, D.C., which I think is 95 percent for Mr. Biden.”

But getting a venue changed, specifically because of the political demographics of a particular region, will also likely be difficult.

“The standard for a change of venue is not looking at the voting demographic of the district,” Malcolm said. “What you would have to show is there has been so much adverse publicity, so much that it will be impossible to find, or very difficult to find, twelve impartial jurors who have not formed a pretty settled opinion about the events in the indictment.”

Trump’s team, he said, could try to argue that while the events of January 6 were highly publicized nationally, for D.C. residents, “it was in their backyard.”

Malcolm said Trump’s lawyers could claim that in D.C., “everybody’s going to know somebody who was at the Capitol or involved that day. There were police blockades all over the place. There was media all over the place. It’s like This Is Spinal Tap, at Washington it was at 11.”

Turley agreed that a politician’s unpopularity in a particular location “is generally not the type of argument that persuades courts to move cases.” Though he added that it was true that “there is a legitimate concern about the unpopularity of Donald Trump in Washington, D.C.,” and “the dislike for Trump in Washington is palpable and virtually universal.”

“The courts have become increasingly reluctant to grant venue changes in high-profile cases because the whole country is saturated by media exposure,” Turley said.

He suggested that to ensure a fair trial in Washington, D.C., Trump’s team may be better off seeking enhancements to the voir dire process, the preliminary examination of the jurors.

“The court’s obligation is to ensure the defendant an unbiased jury,” Turley said.

Trump’s team will likely be doing polls about people’s opinions about Trump’s post-election behavior, Malcolm said, and if they can demonstrate that there is a jurisdiction that is not inconvenient and where it will be more likely to seat twelve impartial jurors, “then they’ll rock and roll with that.” But, he added, “these are not slam dunk motions. These are tough motions to establish. They are rarely granted, but they are on occasion granted.”

Trump is one of the most famous people in the world — arguably the most famous — and most people across the country have some opinion of him, and at least know the general outlines of what occurred after the 2020 election. Seating an impartial jury does not require finding twelve people with no knowledge of the events in question, Malcolm said.

“It’s okay to have read news accounts. You just have to be able to say, ‘Yeah, I’ve read news accounts about this, but I’m prepared to keep an open mind, and I pledge to follow just the evidence presented in court,” he said. “My job as a juror is not to decide whether he should be the next president. My job as a juror is to decide, based on the evidence, whether he committed the crime as alleged by the government.”