Should the magistrate recuse himself?

Like any Mafiosi would, Trump wants the search warrant affidavit unsealed, so he can find out who the witnesses were (i.e., the “rat”).

It’s possible to be legitimately curious about the details of probable cause — for example, the news media wants to know, too — but in his case, that’s unlikely. Little or nothing he does, and his reasons for doing it, is legit.

The Department of Justice (DOJ) opposes unsealing the affidavit, so a federal judicial officer has to make a decision. In that vein, U.S. Magistrate Bruce Reinhart, who approved the search warrant, set a hearing for Thursday, August 18, 2022, receive arguments. (Read story here.)

Trump wants Magistrate Reinhart to recuse himself, apparently because he recused himself a few weeks ago from a Trump lawsuit against Hillary Clinton (see that story here).

Should he?

The correct answer is, “hell no!” but judicial decorum requires just saying “no,” in a flat, unemotional, tone of voice. Let me explain why.

First, criminal suspects don’t get to choose the judge handling their case (for reasons why, if you can’t figure out yourself, watch the ending of “The Untouchables” again). Second, while an argument could be made that Reinhart is now biased against Trump because of all the death threats Trump incited against him, there’s a rule in law that parties to a trial don’t get to profit from their own misconduct.

This came up in Charles Manson’s trial, when Manson showed the jury a newspaper blaring that Nixon declared him guilty (see courtroom artist’s sketch here), and the judge refused to declare a mistrial. By analogy, Trump shouldn’t get a different judge just because he’s encouraging his supporters to murder the one that’s assigned.

It’s possible, of course, that Trumpers’ threats against Reinhart’s life and his children’s lives might prejudice Reinhart against Trump. If it doesn’t, he’s a better man than most of us. But this isn’t about Trump deserving to be stuck with Magistrate Reinhart. Deserve’s got nothing to do with it.

If criminal defendant, suspects, or subjects of criminal investigations could get rid of judges they don’t like for one reason or another by threatening them in order to create an aura of prejudice, you’d have every criminal defendant in the country judge-shopping to get tough-on-crime judges kicked off their cases by threatening to kill the judge. The more creative ones — and this doesn’t create a whole lot of imagination — would threaten to kill all the judges, so they couldn’t be tried at all.

I can’t read Magistrate Reinhart’s mind, but I can guess he didn’t want this case in the first place, and certainly didn’t ask for it. Signing an FBI warrant to search Trump’s house for stolen nuclear secrets and spy lists stashed there is the kind of dirty job that federal judges give to underlings, and as a federal magistrate, an underling is exactly what Reinhart is. Unlike federal judges, who are appointed for life, a magistrate is hired by the judges for gofer work, and is an employee. He’s the guy they tell to refill the coffeepot when it runs dry, because the secretaries and law clerks have a union now.

He could, of course, get rid of this dirty job by recusing himself. But you don’t get promoted by shirking the dirty work. Reinhart may have hopes of being appointed to a judgeship someday. He surely realizes that being a dutiful, ethical, and impartial magistrate could help, and certainly couldn’t hurt, to get him there. Apart from the pride that flows from being a good magistrate, he would want sparkling recommendations from the judges he’s working for.

So, Trump probably needn’t worry about Magistrate Reinhart’s impartiality. And that, most likely, is exactly why Trump doesn’t want him on this case.

It’s a red herring anyway, because given what we now know, it’s hard to imagine any judge or judicial officer not okaying this search warrant. And so far, there’s no indication that Magistrate Reinhart is biased or isn’t following the law.

Return to The-Ave.US Home Page

Comments are closed.