More Judicial Rebellion in D.C.

How many errors can one judge cram into a one-and-one-half page Order? Grounds for disqualification?

Background

On Monday past, I published “D.C. Federal Judges Join the Resistance.” It focused on one D. C. federal district judge, Beryl Howell, who let her emotions get the better of any prudent legal judgment when she refused to implement the President’s direction to the Attorney General to dismiss all pending indictments against January 6 defendants with prejudice. She first vented her spleen against the defendants and President Trump (whom she accused of perpetrating a “revisionist myth”) in a wholly gratuitous screed about why the prosecutions were necessary and proper. She then finally admitted that she had no legal right to refuse to dismiss the case. But to show the President who was boss, she refused to dismiss the case with prejudice. That left open the potential for a re-filing of the same charges. It was, of course, totally contrary to the President’s and DOJ’s clear intent.

In that same article, I pointed out that Judge Howell had company. Three of her rebellious colleagues on D.C. district court also refused to dismiss pending J6 cases with prejudice. This article discusses a shorter, but more confused opinion by one of those judges, Tanya Chutkan.

The President’s Proclamation

The President entered his Proclamation on inauguration day. I describe it more fully in “D.C. Federal Judges Join the Resistance.” For present purposes it is important to note that it pardoned persons who had been “convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021.” (all bolded emphasis is added).

Defendants who had not yet been convicted did not receive a pardon. For them, the President directed the Attorney General “to pursue dismissal with prejudice to the government of all pending indictments against individuals for their conduct related to the events at or near the United States Capitol on January 6, 2021.” The Attorney General complied by directing the Department of Justice to seek dismissals of the pending indictments “with prejudice” under Federal Rule of Criminal Procedure 48(a).

Judge Tanya Chutkan

Judge Tanya Chutkan

Tanya Chutkan may be the worst of the bunch. She has a reputation for overly harsh sentences for J6 defendants, even imprisoning defendants for whom the prosecutors had recommended no confinement. She has presided over other cases involving Trump. And, as Senator Ted Cruz put it, she has a “reputation for being far left, even by D.C. District Court standards” and “is going to be relentlessly hostile to Donald Trump.”

But for our present purposes, Chutkan’s unsuitability to preside over complex cases related to the Trump administration is highlighted by her recent incoherent ruling in which she refused to dismiss charges against a J6 defendant with prejudice. That ruling evidences a lack of analytical ability that renders her unable to grasp basic legal concepts, although she does know how to throw in a scatological catchphrase guaranteed to attract media attention.

The case before Judge Chutkan was United States v. Banuelos. The defendant was not arrested for J6-related offenses until March 2024. By the time of Trump’s inauguration ten months later he had not been tried or convicted. Reportedly he had a trial “tentatively scheduled” in February 2025. So, Banuelos was in the category of those untried, non-convicted defendants for whom the President had instructed the Attorney General “to pursue dismissal with prejudice.” The DOJ prosecutors complied by promptly moving for a dismissal of his indictment, with prejudice, pursuant to Federal Rule 48(a).¹

Judge Chutkan’s Order

Judge Chutkan ruled on that motion on January 22. She refused to dismiss the charges against Banuelos with prejudice. Her Order is a mishmash of confusion, defiance, and intellectual incoherence.

First, Chutkan gave every appearance of being ignorant of the fundamentals of the legal matter before her. She did not understand the difference between a Presidential pardon and a DOJ decision not to prosecute and to seek a Rule 48(a) dismissal. She opened her discussion with this gem:

The Government’s only stated reason for pursuing dismissal with prejudice is that the President, in addition to pardoning the Defendant, has ordered the Attorney General to do so.

No, Your Honor, no! There are several errors in just that one sentence. I will focus on just two.

First, the President did not pardon Banuelos. The clear language of the Proclamation, which Chutkan cites in her Order, grants pardons to “all other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021.” For defendants who had not been convicted, the President instead directed the Attorney General to “pursue a dismissal with prejudice to the government of all pending indictments.” And that is exactly what DOJ did by filing a Rule 48(a) motion to dismiss the indictment with prejudice.

Thus, because Banuelos had not been convicted, the Presidential pardon did not extend to him. Chutkan’s contrary conclusion is inexplicable.

It is useful to note here that a pardon and a Rule 48(a) dismissal of an indictment with prejudice are not functionally the same thing. A pardon does not purge or erase a criminal conviction. It does not expunge the recipient’s criminal records. If a potential employer later asks a pardon recipient whether they have ever been convicted of a crime, he or she would be obligated to respond in the affirmative. If they had paid a fine to the U.S. Treasury as part of their punishment, a pardon would not give them the right to have the money refunded. In contrast, when an indictment is dismissed against a defendant who has never been convicted, they never pay a fine for the offense and have no criminal conviction on their record (at least for the offenses dismissed). So, a Rule 48(a) dismissal is not the equivalent of a pardon and confusing the two is a mistake of substance.

There is a second error in that one sentence that leads to another legal error. It also displays the intellectual incoherence in her Order. Chutkan’s mistaken belief the President had pardoned Banuelos (“the President, in addition to pardoning the Defendant….) is totally inconsistent with her refusal to dismiss the case “with prejudice.” A pardon would prevent the case from ever being filed again. But Chutkan entered only a dismissal “without prejudice.” The charges are still hanging over the defendant’s head and can be re-filed. This incoherence between this and Chutkan’s belief that Banuelos was pardoned is inexplicable except, perhaps, by a desire to spite either President or the defendant (or both).

More errors and incoherence in the Order

Not content with multiple errors in the one sentence, the same paragraph of Judge Chutkin’s Order contains another legal error. After claiming that the President pardoned Banuelos, she pronounced that the pardon “does not necessarily render ‘innocent’ a defendant of any alleged violation of the law.” Sorry, Judge, but Banuelos is a legally innocent man. You learned in law school that in our system of justice, all defendants are presumed to be innocent. They are not deemed guilty until an order of conviction has found them to be guilty. That principle may not apply in your court these days, but it remains the law of the land despite your implication to the contrary.

Possibly Chutkan was trying to make the point that the alleged pardon did not mean that Banuelos did not commit the acts with which he was charged, that he was not “innocent” as a moral matter. That may be true, but, aside from the fact that this is not what she said, it is outside her role as a judge to comment on it. In their opinions and orders, judges are supposed to employ legal language to convey legal concepts, and the presumption of innocence is chief among them. Chutkan departed from that rule, too.

In the penultimate paragraph of her discussion, Judge Chutkan cloaked this defendant with all the sins of any sort committed by all J6 actors. She says, “More broadly, no pardon can change the tragic truth of what happened on January 6, 2021.” There we go with the “pardon” meme again. She then continues:

“The dismissal of this case cannot undo the ‘rampage [that] left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage.’”

This inflammatory rhetoric is not worthy of a United States district judge. How many “multiple people” did the “rampage” supposedly leave dead? Four people died that day. All were Trump supporters. Of these four, only one was killed. Ashli Babbitt, an unarmed Air Force veteran, was shot to death by a capitol police officer under circumstances that need not be described here, other than to say, “Justice for Ashli still remains to be done.” The other three died from medical emergencies, including heart-related conditions and one accidental drug overdose.

Further, in a blatant piece of false propaganda, the Capitol Police released a statement blaming the “rioters” for the death of Officer Brian D. Sicknick. As reported by CNN on January 8, 2021, the Capitol Police claimed that Officer Sicknick “was injured while physically engaging with the rioters and collapsed after returning to his division office.” He supposedly was “taken to a local hospital where he succumbed to his injuries” with those fatal injuries being “due to injuries sustained while on-duty.” It was all a lie. Officer Sicknick died from a stroke on January 7, and his death was determined to be from natural causes.

Chutkin’s statement that the January 6 “rampage” left “multiple people dead,” perpetrates these lies. She obviously intended to imply that the “rioters” caused these “multiple” deaths. Chutkan either was trying to mislead or simply didn’t know anything about the facts that she was putting in her opinion. Sloppy or venal, take your pick.

Chutkan then concluded,

“It cannot whitewash the blood, feces, and terror that the mob left in its wake.”

Did Banuelos have anything to do with that? Surely if he had, Judge Chutkan would have said so. But she did not. She was content to smear him by borrowing that snippet from another case. And if you dig down in the case she cited (see fn. 5 & 3) to identify ultimate source for the quote, you will see that it is none other than The New York Times.

As Chutkan surely knew and likely intended, the “blood, feces, and terror” snippet became a media favorite. See, for example, The Hill (headline): “‘Blood, feces and terror’ — judges are raging over Trump pardons;” MSN (headline) (“'Blood, feces and terror': Judge Chutkan unleashes on Trump in response to Jan. 6 pardons”); Michael Smerconish, CNN Anchor; CBS; and others.

A contrast and judicial restraint in United States v. Box

Judge Colleen Kollar-Kotelly

The tempered approach taken by Judge Colleen Kollar-Kotelly in United States v. Box provides a sharp contrast with the inflammatory approaches embraced by Judge Chutkan and some of her other rebellious colleagues. The Defendant, Dominic Box, had been found guilty of “Parading, Demonstrating, or Picketing in a Capitol Building,” and similar charges after a trial in June 2024. But as of January 20, 2025, there was no final conviction order entered yet because Box was not scheduled to be sentenced until February 21.

After a sound analysis of the propriety of entering a Rule 48(a) dismissal under these circumstances, Judge Kollar-Kotelly turned to the propriety of the requested dismissal with prejudice in view of the defendant’s established guilt and all that occurred at the capitol on January 8. She disposed of that in three sentences:

Here, the Government’s only stated reason for pursuing dismissal with prejudice is that the President has ordered the Attorney General to do so. The Court does not discern—and neither party has identified—any defect in either the legal merits of, or the factual basis for, the Government’s case that would require dismissal. But recognizing that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case,” the Court shall not require a further explanation here. See United States v. Nixon, 418 U.S. 683, 693 (1974). (internal citation omitted)

She then dismissed the case with prejudice.

The President’s authority was absolute, so no “further explanation” was required or appropriate. Judge Kollar-Kotelly’s colleagues on the bench could learn from her.

What now?

Following the publication of “D.C. Federal Judges Join the Resistance,” I have seen a number of comments suggesting various remedies, the most humane of which were a complaint to the D.C. bar or impeachment. As a practical matter, success with the former is unlikely. As for impeachment, it would be quite time-consuming, and Congress has bigger fish to fry.

But I do have a modest suggestion that should be considered by DOJ.

The Democrats and their allies have made it abundantly clear that they are going to continue their Lawfare. They are going to file suits nationwide in cherry-picked venues trying to thwart the administration’s entire agenda. Executive orders, laws passed by Congress, agency actions, employee terminations, attacks on fraud waste and mismanagement . . . everything this administration tries to do will be litigated. Many of these suits will be filed in Washington D.C. where some will be assigned to Judge Chutkan. DOJ should pull out all stops and make a sustained effort to disqualify Chutkan from any cases involving the administration on the grounds that she has demonstrated such a bias against it that she should be disqualified from hearing any other cases involving the administration.

In my opinion her bias is evident from both the approach and language used in Chutkan’s Order and from the simple fact that she refused what should have been a routine request to dismiss these prosecutions with prejudice as DOJ had suggested. DOJ may conclude that the same rationale necessitates the disqualification of Judge Howell, and perhaps other judges also. I defer to it.

This is an envelope worth pushing. And when Judge Chutkan predictably refuses to recuse herself, DOJ should keep the pressure on and appeal, including to the Supreme Court, if necessary.

1. After reciting in the opening sentence of her Order that the government’s motion was brought under Rule 48(a), Judge Chutkan never again mentioned Rule 48(a), much less attempt to analyze or discuss in any way why she was dismissing only without prejudice.