OPINION: This article may contain commentary which reflects the author's opinion.
A federal judge has appears to be set to make a decision in the case of Donald Trump claiming executive privilege on certain documents the House Select Committee investigating the January 6 incident at the Capitol wants.
And the decision by this judge, who was appointed by former President Obama and who made her disdain for Trump known in a previous case, should not be a surprise.
District Court Judge Tanya Chutkan said on Thursday that Trump could not claim executive privilege, noting “There is only one executive,” referring to President Joe Biden.
“The person best able to determine whether there’s an executive privilege is the current executive,” the judge said, Politico reported.
She said that Trump, being a civilian, has no control over any branch of government.
“I don’t see where the separation-of-power argument that you’re making exists,” she said to the 45th President of the United States’ attorney Justin Clark
Chutkan’s commentary suggests she’s likely to rule against Trump’s effort to stop the National Archives from furnishing the records to Congress, a crucial milestone as the Jan. 6 committee seeks greater insight into Trump’s effort to overturn the 2020 election. Though Chutkan didn’t rule immediately, she vowed to issue a decision “expeditiously,” noting that the National Archives intends to provide the documents to lawmakers by Nov. 12.
But Chutkan also indicated that she had concerns about how broad the Jan. 6 committee’s request for Trump’s records were. Some documents they’re seeking, she noted, included polling data and records as far back as April 2020.
“There’s almost no limit to what you could be seeking,” she said.
But the fact that this judge has not recused herself from the case is astounding. In October this judge made a reference to Trump as she sentenced one of the Capitol rioters and criticized comparing it to racial protests and riots that have taken place.
“To compare the actions of people around the country protesting, mostly peacefully, for civil rights, to a violent mob seeking to overthrow the lawfully elected government is a false equivalency and downplays the very real danger that the crowd on January 6 posed to our democracy,” she said at the sentencing hearing for Matthew Mazzocco of Texas, sounding more like a CNN contributor than a judge.
She said that the protesters “soiled and defaced the halls of the Capitol and showed their contempt for the rule of law.”
“The country is watching to see what the consequences are for something that has not ever happened in the country before,” she said.
“Mr. Mazzocco did not go to the United States Capitol out of any love for our country,” she said in reference to Trump. “He went for one man.”
And where prosecutors only asked the judge for three months of home confinement for the defendant she decided that 45 days in prison was the correct punishment.
She argued that if the defendant “walks away with probation and a slap on the wrist … that’s not going to deter anyone from trying what he did again.”
No one other than her can know what her motivation for increasing the sentence from what prosecutors wanted could be. But she said that deterring another incident like January 6 was on her mind.
“Because the country is watching,” she said, “to see what the consequences are for something that has not ever happened in this country before, for actions and crimes that undermine the rule of law and our democracy.”
The judge acknowledged that the defendant was only in the Capitol for around 12 minutes, did not do any damage and asked others not to do any damage.
She said she had read letters from family and friends of the defendant saying that he wandered into the Capitol because of curiosity.
“That’s not what he did,” she said. “He learned about the protests, he bought an airplane ticket from Texas, he got on a plane with the intent of coming to Washington to interfere with the transition of power … and that’s what he did.”
She said that as if he broke the law by protesting. What he did by going into the Capitol is a crime but getting a plane ticket and going to the protest is not, and there is no indication that he knew in advance that some of the protesters would head inside the Capitol.
