The Injudicious Tanya Chutkan

The Obama appointee's antics in court and out-of-order rulings in favor of Special Counsel Jack Smith demonstrate her recklessness and partisan interest in advancing a dead letter case.

According to a New York Times profile last year, Tanya Sue Chutkan once had big dreams of the big stage. Chutkan wrote in her high school yearbook that her “ambition” in life was to “become a famous dancer.” After high school graduation, Chutkan left her home in Jamaica to attend college in the United States. “After graduating [from George Washington University] in 1983, she relocated to New York in hopes of pursuing dance as a profession, but a few months with the Dance Theatre of Harlem appeared to have rid her of any such designs,” Times reporter Robert Draper wrote in 2023.

But Chutkan, now 62, has not abandoned a longing for the spotlight, which was evident during her 75-minute performance last week in Special Counsel Jack Smith’s case against former president Donald Trump related to the events of January 6 and alleged effort to “overturn” the 2020 election.

The Obama appointee swooped into court on September 5 with an air of haughtiness and defiance unbefitting a judge strongly rebuked by the Supreme Court in the landmark Trump v US opinion published July 1.

Not only did the court reverse Chutkan’s 2023 opinion denying Trump’s claims of presidential immunity from criminal prosecution, but Chief Justice John Roberts also took numerous shots at Chutkan over her careless handling of the historic matter. “Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis,” Roberts wrote. The chief justice also noted Chutkan and her appellate court colleagues failed to conduct a “factual analysis” as to which elements in Smith’s four-count indictment might be covered by immunity.

Ready for my Close-Up, Mr. Smith

Chutkan, however, showed no sign of contrition over the court’s tongue-lashing; to the contrary, she was loaded for bear. Smith and his team of prosecutors assembled on one side of the packed courtroom—two other rooms in the Washington federal courthouse also were filled with reporters and spectators to access a live video feed of the proceedings—and Trump’s defense attorneys gathered on the other side.

But far from acting as an objective referee between the opposing sides, Chutkan played the role of every television drama theatrical judge. She not only verbally sparred with John Lauro, Trump’s lead defense attorney in the case, she rolled her eyes, smirked, crossed her arms, and held up her hand in a nonverbal “I AM SPEAKING” moment. On several occasions, Chutkan made snide comments directed at the defense to get a laugh from the Trump-hating gallery. (Which she did.)

Barely a minute into the proceedings, Chutkan already was taking digs at Lauro:

Chutkan: It's been almost a year. You look rested, Mr. Lauro. 

Lauro: I am, your Honor. But life was almost meaningless without seeing you for a year. So it's good to see you again. 

Chutkan: Well, enjoy it while it lasts.

In addition to Chutkan’s hostile tone and body language, her jaw dropping comments throughout the rest of the hearing made her partisan motives clear. While she dishonestly insisted that the case had proceeded cautiously—Chutkan did everything in her power to rush the case to trial in a matter of seven months but was sidelined by Trump’s immunity appeal—she again underscored that the election has no impact on her decision-making. “I understand there is an election impending, and I've said before and I say again that the electoral process and the timing of the election and what needs to happen before or shouldn't happen before the election is not relevant here. This Court is not concerned with the electoral schedule,” Chutkan warned Lauro.

Chutkan offered up more reality-denying statements raising doubt she even read the SCOTUS immunity opinion or understands the significance of the matter before her. When Lauro again raised the historical nature of the case and urged a careful handling of the next steps, Chutkan snapped, “I don't need any more rhetoric on how serious and grave this is.”

In another heated exchange, Chutkan cast the J6 indictment as just another case in her courtroom:

Lauro: We're talking about the presidency of the United States.

Chutkan: I'm not talking about the presidency of the United States; I'm talking about a four-count criminal indictment. 

Lauro: We're talking about presidential immunity, which was the subject of U.S. v. Trump. 

Chutkan: I understand, Mr. Lauro. 

Lauro: …about the presidency, and that's what we're talking about.

A Court Out of Order

She appeared to dispute what SCOTUS said including the court’s clear determination that Trump’s communications with former Vice President Michael Pence were “presumptively immune,” which ultimately taints not just the indictment but the investigation as a whole. The court held that immunized conduct cannot be used in any step of the investigation including grand jury testimony; Pence and his top aides appeared before a Washington grand jury related to the J6 case.

“I'm not sure that's my reading of the case. But, you know, it's subject to a lot of different readings,” Chutkan told Lauro after he cited the Trump-Pence material as the reason why the J6 indictment was “illegitimate…from the get-go.”

But Smith will now get two bites of the poisoned apple in Chutkan’s courtroom moving forward. Smith filed a watered-down superseding indictment late last month; under normal procedures, defense attorneys are then allowed to respond with motions to dismiss.

Chutkan, however, consented to Smith’s unusual request to file an “opening brief” to explain why the existing elements in the updated indictment are not covered by presidential immunity. Despite calling the brief “procedurally irregular,” Chutkan nonetheless ordered the special counsel to file the brief by September 26. The brief will allow the DOJ once again to control the narrative and put Team Trump on the defensive.

Lauro strenuously pushed back citing that nothing in standard protocol or rules of evidence permits such a submission. “The special counsel proposes a device which turns the criminal rules on its head. There are no special rules for the special counsel.”

Chutkan, tipping her biased hand once again, disagreed. “[The] federal rules and the local rules for filing motions are obviously there for us to follow, but we routinely depart from those rules,” she said without substantiating her claim.

She further set other deadlines in the case that extend beyond Election Day.

But Chutkan knows this case will not survive additional scrutiny when it again makes its way to SCOTUS. In fact, perhaps her most chilling remark was when she told Lauro, “I'm risking reversal [by higher courts] no matter what I do.”

Translation: Her next order on immunity will not be the result of a careful, judicious process contemplating the seriousness of the matter but a political instrument to help the DOJ advance the dying case and secure her name in the history books regardless of the ultimate outcome.

Long sought-after fame finally achieved.