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Judge in Trump case should recuse herself, says former WH ethics lawyer

Former President Donald Trump arrives in Miami to face arraignment in a federal court. Richard Painter, Former Chief White House ethics lawyer in the George W. Bush administration, joins Yahoo Finance Live to talk about the circumstances of Trump's charges, the potential bias of the presiding judge, and the investigation's impact on the 2024 election.

Video Transcript

- Well, speaking of tightrope walking. The city of Miami is preparing for possible chaos outside of the courthouse where former President Donald Trump is set to be arraigned this afternoon. Police officials and Mayor Francis Suarez saying that they are prepared for any protests or crowds that may gather as Trump faces 37 federal charges.

Joining us now with what we can expect, how we should be thinking about this case and trial overall is Richard Painter. Former Chief White House Ethics lawyer and Professor of corporate law at the University of Minnesota Law School. Richard, thank you for being here.

So I know that you have a view on the judge who is set to oversee the case. But just to take a step back from that and set a scene here for what we can expect today. What can we expect from the arraignment? What happens next? And how should we be viewing how the former President is sure to frame this whole situation?

RICHARD PAINTER: Well, this should be a standard arraignment where the defendant appears before the judge pleads guilty or not guilty, or before a magistrate and is processed very quickly. There's nothing much-- the substantive that's going to happen today. I believe there should be a different judge.

And this judge Judge Cannon made some decisions in connection with the investigation, trying to stall the investigation that were overturned by the Court of Appeals. And I think it'd be much better just to start fresh with a different judge. This is about protecting our national security and classified information. I gave the lectures to the Bush White House on protection of classified information in 2005. We take this very seriously in the United States government. This is not a partisan issue.

And I've called for a full investigation of what happened with the Biden documents. Particularly the documents held at the University of Pennsylvania, Penn Biden center. Investigation of the Chinese fundraising by the University of Pennsylvania. So this is not a partisan issue.

Whenever you have classified documents that have been placed in an unsafe environment, it's critically important to immediately have an investigation and for everyone to immediately cooperate with the investigation. And the difference here is that Donald Trump refused to cooperate. He obstructed the investigation. And that is a very, very serious offense if that can be proven by the prosecutor.

These investigations aren't just about fault finding. They're about finding who saw the documents. Who may have had access? What national secrets may have been compromised? And full cooperation with these investigations by the FBI, by our national security officials is critically important. That's what I told the Bush White House in 2005.

I believe the Biden administration is doing that and encouraging the University of Pennsylvania to cooperate with that investigation. Donald Trump didn't do that. And that's why he's in the courthouse today.

- Yeah, the evidence laid out in those charges do seem relatively damning on that point. I do want to return to Judge Aileen Cannon for just a moment. Because, as you laid out in a recent op-ed, you do think she should recuse herself, as you just mentioned. Bottom line, do you think she is not impartial in this case? And do you think there actually is a chance she'll recuse herself?

RICHARD PAINTER: Well, the standard under the federal statute 28 United States Code 455 is whether a reasonable person could question the impartiality of the judge. Not whether the judge is or is not impartial. This is a question of what appearances there are out there. And it's critically important in criminal cases for judges to recuse when a reasonable person could believe there is bias.

If a judge does not recuse and there's a perception of bias against the defendant, the defendant will likely win a verdict on appeal. And the same thing here. This is a judge who has made several decisions that were overturned by the Court of Appeals favoring Donald Trump, blocking the federal investigation, denying the United States government custody of its own classified documents. And I believe that it's going to be best for everyone if we start with a new judge.

- If she doesn't recuse herself, do prosecutors have any recourse?

RICHARD PAINTER: Prosecutors could move to recuse. Ask the district court to recuse the chief judge, to ask her to recuse or go to the Court of Appeals, in some circumstances. The best thing is for the judge, Judge Cannon, to voluntarily recuse. She has plenty of other cases to hear and allow another judge to hear this case.

So there will be no question about the impartiality of the judge. And if there's another judge who has strongly criticized Donald Trump and shows bias-- that appears to show bias against him, that Judge also should not hear this case. Whenever you have these problems, particularly in a criminal case, there can be a chance of a reversal of a verdict on appeal, and that's not where we want to go.

- Realistically, timeline-wise, how long do you think this proceeding could actually take? Could we be talking about a proceeding that goes to or even through the 2024 general election?

RICHARD PAINTER: The defendant has a right to a speedy trial. Donald Trump has a right to a speedy trial. Sometime probably, there's no clear measure of that. But if he wanted a trial in the next six months to one year, he could get that. Now whether he wants that or not is another question.

Now the defendant does not have the right to indefinitely delay a trial. It's doubtful that Donald Trump would be able to delay this trial until after the November 2024 election. But if he sought some delay, the trial probably would be scheduled sometime in the summer of 2024. But hopefully, this trial will take place earlier so the matter can be resolved.

- We asked our guests, even in our preparation for a segment yesterday, whether or not a person who was convicted of the charges that are put forward in this indictment or the allegations that are put forward, whether they could actually, if proven guilty, still be elected President of the United States.

RICHARD PAINTER: Well, the statute says that some of these offenses concerning classified information, violation of the statute precludes one from assuming public office in the United States. That's what the statute says. There are serious questions about whether that's constitutional with respect to elective office.

I will emphasize that there's still the most serious charge that could be brought against Donald Trump has not yet been brought. And that is for sedition in connection with the January 6 2021, insurrection. The attempt to overthrow the election.

If Donald Trump were to be found guilty of sedition, he would clearly be disqualified from public office under the 14th Amendment section 3, which disqualifies from public office anyone who has sworn an oath of loyalty to the United States and then give an aid or comfort to any attempt to overthrow the United States government. A insurrection of the sort we saw on January 6th of 2021.

So those charges have not yet been brought. They might be brought by the special counsel. And those are the charges that clearly constitutionally would disqualify anyone from assuming any public office in the future.

- What do you think is the likelihood that those charges will be brought? And what would the chances of success be in that case?

RICHARD PAINTER: I've urged that the Department of Justice consider such charges very seriously. This was an attempt to overthrow the government. This happens in many countries where an elected President decides to stay in power despite an electoral defeat or the expiration of the president's term. And then seeks to use the Justice ministry and/or the military and/or a mob gather outside the Capitol building to seize power.

And unfortunately, this has happened where elected leaders, prime ministers, chancellors have perpetuated themselves in power through a so-called self-coup. Auto golpe as they sometimes refer to as Latin-- in Latin America. It happened in Germany in the spring of 1933 when Chancellor Hitler took control of the government.

Auto coup-- auto golpe, self-coup, this is extremely dangerous in a representative democracy. That's what happened on January 6th of 2021. And Donald Trump has his fingerprints all over it.

- Richard Painter. Former Chief White House Ethics lawyer and Professor of corporate law at the University of Minnesota Law School. Thanks so much for taking the time here with us today and help us piece together some of the parts of this indictment as well as others that may come forward in the future.

RICHARD PAINTER: Thank you for having me.