ABOVE: U.S. District Judge Tanya Chutkan (Credit: Diego M. Radzinschi/ALM)
Former president Donald J. Trump has pled not guilty to all charges for his role in the January 6th insurrection. Inside E. Barrett Prettyman Courthouse in Washington, D.C. on Thursday, Trump stood before Magistrate Judge Moxila A. Upadhyaya, who oversaw the roughly half-hour hearing. She ordered Mr. Trump not to talk about the case with any witnesses, except through counsel.
When his trial begins on Aug. 28, Trump will face a judge who represents everything he seems to hate: Judge Tanya Chutkan, a Black female judge appointed by President Barack Obama to the United States District Court of Washington, D.C. in June 2014. Trump, who has a history of attacking judges and prosecutors (especially Black ones), is already demanding she be removed from the case. But he may want to rethink any attacks on Judge Chutkan — an experienced judge who plays no games.
Trump was indicted by a grand jury on August 1 in Special Counsel Jack Smith’s investigation into January 6th. Trump faces four counts, including obstruction of an official proceeding and conspiracy to defraud the United States.
The indictment opens by saying that Trump lost the 2020 election. “Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But the Defendant repeated and widely disseminated them anyway,” the indictment says, adding that doing so helped “create an intense national atmosphere of mistrust and anger.”
The indictment also says that Trump “pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetuated three criminal conspiracies:
- A conspiracy to defraud the United States by using dishonesty, fraud and deceit to impair, obstruct and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified […]
- A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding […]
- A conspiracy against the right to vote and to have one’s vote counted, in violation of 18 U.S.C.”
The results of a presidential election are collected, counted, and certified through a process established by the Constitution and the Electoral College Act (1887). We Americans do not elect the president directly. They don’t just count up all the votes and see who wins. Rather, votes are counted by state. The winner of the state is awarded the state’s “electors” — a group of designated people who get the final say.
Each state (except Maine and Nebraska) has a “winner-take-all” system: whoever gets the popular vote in a state gets all that state’s electors. (Each state gets a number of electors equal to its number of representatives. So if Texas has two senators and 36 House reps, it gets 38 electors.) After Election Day, each state decides who its electors will be. “Finally, the Constitution and ECA required that on the 6th of January […] the Congress meet in a Joint Session for a certification proceeding, presided over by the Vice President,” the indictment says.
“Manner & Means”
Trump and his co-conspirators “organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow,” Smith’s indictment says. That included having the fake electors meet on the same day as the real ones met to cast their votes. They also signed certificates falsely claiming that they were the real electors. Then they sent the fake certificates to Vice President Mike Pence, among other government officials.
Trump even misled his own foot soldiers: “Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the Defendant [Trump] succeeded in outcome-determinative lawsuits within their state, which the Defendant never did.” Trump and his minions tried to get Pence to alter the election results. They tried to convince him to use the fake electors. And Trump pressured Pence relentlessly to overturn the election.
When that failed, Trump and his gang hosted a rally, telling supporters that Pence could and might change the results. Then Trump told them to go to the Capitol — which was soon the scene of a deadly riot. Now, he faces a particularly tough judge in the case. Her name is Tanya Chutkan.
“Here Comes The Judge”
Born in Kingston, Jamaica, Chutkan emigrated to the United States to attend college at George Washington University. (She earned her law degree from the University of Pennsylvania.) She spent over a decade as a public defender for impoverished clients before joining the federal bench in Washington in 2014.
Significantly, Trump is now facing a judge who is Black, an immigrant, and a woman — notable because he has a history of attacking people from all three demographics. Additionally, Judge Chutkan has a reputation as a tough judge who handed down stiff sentences to those involved in the January 6th riot: All 11 defendants who came before her court wound up behind bars. No wonder Trump is already calling for her recusal: “There is no way I can get a fair trial with the judge ‘assigned’ to the ridiculous [Jan. 6] case,” he whined on Truth Social. He wants Chutkan to recuse herself from the case.
In addition to the individual criminal January 6th cases, Chutkan also ruled on a 2021 case in which Trump tried to block his White House records from being handed over to the January 6th Committee. Trump had claimed executive privilege, but Judge Chutkan rebuffed his request in her decision.
“Presidents are not kings,” she wrote, “and Plaintiff is not president.”