The Justice Department wants to remove U.S. District Judge Beryl Howell from the Perkins Coie case, after the Obama-appointed judge curbed President Donald Trump’s order targeting the law firm. But as I explained during U.S. District Judge Aileen Cannon’s handling of Trump’s classified documents case, it’s a high bar to remove a judge — so the Trump administration shouldn’t bank on getting rid of Howell.
Recall that the DOJ under then-special counsel Jack Smith didn’t take the step that the DOJ under Trump is taking against Howell. When Smith appealed Cannon’s decision to dismiss Trump’s documents case, outside groups supporting Smith called for her ouster; but the appeals court didn’t rule before Trump won the 2024 election, after which Smith moved to dismiss the case based on DOJ policy against prosecuting sitting presidents.
But with the DOJ making a motion for Howell’s disqualification, we should get a court ruling on the subject.
And what is the Justice Department arguing? From its motion filed Friday, here’s a summary of the government’s position why, in its words, the judge “has repeatedly demonstrated partiality against and animus towards the President” in several past cases in addition to the present one:
Examples include this Court enabling the improper efforts of disgraced former prosecutor Jack Smith despite a readily apparent lack of venue in this District; wrongly suggesting in public that President Trump is an authoritarian; and incorrectly finding that President Trump — the most well-known man on Earth — presents a flight risk where even the prior Administration’s Department of Justice had to retract such a suggestion. This Court’s comments at the hearing on the meritless motion for a temporary restraining order (“TRO”) in this case, including gratuitous and biased references by this Court regarding the investigation of Special Counsel Robert Mueller (“Mueller Report”), confirm that reasonable observers may view this Court as incapable of fairly adjudicating these claims against the Commander-In-Chief.
At the outset, there’s an important distinction to draw between a judge’s rulings and other things such as their outside comments, relationships and the like. That’s because, according to a Supreme Court precedent that the DOJ cites in its disqualification motion, rulings alone “almost never constitute a valid basis for a bias or partiality motion.”
To be sure, the DOJ doesn’t only cite Howell’s rulings. DOJ lawyers pointed to a 2023 speech she gave at a conference in which, they wrote, she “lamented that America is at a ‘crossroads’ and, in an apparent reference to President Trump, indicated that one path would lead to authoritarianism.” They also cited her remark at a hearing in the Perkins Coie case about Trump having “a bee in his bonnet.”
When it comes to judicial statements, a party has an even more difficult task when the statements come from the judge’s participation in the relevant legal proceedings, as opposed to from what’s known as an “extrajudicial” source. That subject came up when Trump tried to remove U.S. District Judge Tanya Chutkan from his other federal criminal case, and she rejected his motion, citing that distinction.
While there are distinctions between the situations, it would be surprising if Howell rules differently than Chutkan did when she decides on the motion. Given the high bar for disqualification, if she does in fact deny it, then the Trump DOJ could have a tough time if it presses the matter on appeal.
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