Washington: Donald Trump has been indicted in special counsel Jack Smith’s 2020 election interference investigation. The indictment unsealed on Tuesday charges Trump with trying to overturn the results of the election to remain in power by spreading lies about purported voter fraud and working with others to overturn legitimate results of the election.
Trump is scheduled to make his first appearance Thursday before a magistrate judge in US District Court in Washington, D.C., and after that, the case has been assigned to US District Judge Tanya S. Chutkan.
Trump’s judge in Washington, D.C., will face every bit as much of pressure in the coming months or years as Aileen M. Cannon, the judge presiding over Trump’s separate federal indictment in Florida for allegedly conspiring to retain classified documents after he left the White House.
Here’s what you need to know about how the next federal judge to oversee a criminal prosecution of a former American president will be picked.
How was Trump’s trial judge chosen?
By random draw. But not every judge had an equal chance of getting the case. By court rule, cases are assigned through a random process intended to prevent prosecutors from judge-shopping in pursuit of a friendlier forum, or judges from steering cases among themselves, as was alleged but found unsubstantiated in a special counsel investigation of Bill Clinton in the 1990s.
If it’s randomly drawn, why doesn’t each judge have the same chance of getting the case?
There are many reasons, some simple, some less so.
The main reason is that eight of 21 federal trial judges in Washington are on semiretired or on “senior” status. Although all senior judges stepped up to take full caseloads after the January 6, 2021, Capitol attack to help colleagues manage the flood of more than 1,000 criminal cases, they remain eligible and some have elected to take reduced caseloads after age 65. That means they are less likely than colleagues to land a new case. Up to 20 judges, including seven senior judges, are taking new criminal cases.
Another simple explanation is that judges can be excepted from new case assignments for reasons including hospitalization, lengthy illness, a death in the immediate family, or out-of-town judicial assignments, or if they have been in a trial or hearing for 10 consecutive days. These exceptions happen rarely.
The most complex reason may be the most interesting, at least for people who like to try card-counting at the blackjack table - or predicting the likelihood that a dealer will draw a favorable card.
What does card-counting have to do with picking Trump’s trial judge?
In short, the odds for any given judge to draw a case can depend on their existing caseload, and how many new cases they have recently drawn.
Court officials liken the case drawing process to a “wheel” spun to assign each new case to a judge. In practice, the process works more like drawing from a deck of cards, in which each judge is their own suit, with a number of cards equal to the number of cases they can draw before the case-assignment deck is reshuffled and reloaded.
In this hypothetical deck, a senior judge who takes a reduced criminal caseload has fewer cards in the deck that can be picked at random.
But every judge’s chances of drawing a new case depends on how many cases the judge has already drawn from the deck and how many more cases the judge is required to draw that cycle. Sort of like the chances of drawing an ace from a near-depleted deck in Blackjack when none have emerged so far.
The court carefully restricts access to the wheel and key details such as how often and when it is refreshed, for the same reasons casinos prohibit card-counting or trying to predict the shifting odds of drawing a particular card - or judge - next. However, it is believed that the deck was very recently refreshed to make odds as even as possible, according to a person familiar with the process.
Finally, the case management committee can periodically issue an order resetting the frequency with which each judge’s name appears in the criminal trial deck to achieve an even distribution of cases among active judges, according to court rules. For instance, the process is managed so that newly appointed judges are not immediately swamped with cases, while judges newly on senior status continue to gradually work through previously assigned cases.
So who are the judges?
The as many as 20 judges hearing criminal cases are nearly but not quite evenly split by party of the president who appointed them to their current posts - 12 by Democrats and eight by Republicans, including four by Trump.
Several have been appointed throughout their careers by presidents of both parties. Many have also been asked by Chief Justice John G. Roberts Jr. or the federal judiciary to serve on important management or policy setting committees, the Foreign Intelligence Surveillance Court, or other sensitive positions.
All 20 also are intimately familiar with the January 6, 2021, attack on the US Capitol, nearly all having been assigned dozens of riot cases. Several have deeper knowledge of the investigation from presiding over sealed litigation between US prosecutors and witnesses over search warrants and grand jury subpoenas; criminal trials featuring actions by Trump or his advisers, or civil matters including claims for damages from police and lawmaker victims, or challenges by Trump aides to the House Jan. 6 Committee’s investigation.
While all have condemned the violence and disruption of Congress’s proceeding, some have been more pointed in criticizing Trump than others.
What have they said about Trump?
Nearly all judges have issued harsh words for Jan. 6 defendants, and Chutkan is no exception. She has described that day’s events as “a violent mob seeking to overthrow the lawfully elected government,” and said of one defendant that he “did not go to the United States Capitol out of any love for our country . . . He went for one man.”
She was echoed by then chief US District Judge Beryl A. Howell, like Chutkan a Barack Obama appointee, who called the Capitol siege an “attack on democracy . . . unparalleled in American history.”
“You participated in a national embarrassment,” Trump appointee and former Trump Justice Department official Trevor N. McFadden has told others.
Some judges have criticised Trump and Republican leaders more directly for manipulating riot defendants as “pawns” in an effort to hold onto power, while spreading lies about the election that have damaged democracy.