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Judge Tanya Chutkan is unlikely to release former President Donald Trump from prison pending release if he is convicted in the Department of Justice (DOJ) January 6 case, said former federal prosecutor Glenn Kirschner.
A grand jury indicted Trump earlier in August in the DOJ's investigation into his alleged attempts to thwart his defeat in the 2020 presidential election, which he has claimed without evidence was stolen via widespread voter fraud. Judge Chutkan on Monday set Trump's trial for March 4, 2024, more than two years earlier than the April 2026 date his legal team requested.
Kirschner, a former assistant U.S. attorney and frequent Trump critic, discussed Trump's upcoming trial during an episode of The Legal Breakdown with political commentator Brian Tyler Cohen on Tuesday. Cohen asked Kirschner about whether Judge Chutkan would allow Trump to be released from prison pending appeal if a jury ultimately finds him guilty in the case.
While sentencing does fall to Chutkan's discretion, it is unlikely that she would not send the former president to prison if he is convicted, even if he tries to appeal the ruling, Kirschner said.
"The answer is he can be, yes. But defendants are almost never allowed to be on release, pending appeal, if they've been convicted and sentenced to prison," he said.
He said Judge Chutkan's record on January 6 cases suggests it is "all the more unlikely" that she would allow Trump to be released after a conviction.
"She has been one of the stiffest sentences in January 6 cases, and I have a feeling she will hold Donald Trump accountable. And I don't think there's any way she would allow him to be on release pending appeal. I think the jury convicts him. I think she hands down an appropriate sentence. It will involve prison time, and she will direct him to report to the Federal Bureau of Prisons," he said.
Kirschner noted that one notable high-profile individual who was released pending appeal was Trump's former political adviser and conservative political commentator Steve Bannon, who was found guilty by a jury for refusing to comply with subpoenas from the House committee investigating the January 6, 2021, riot at the U.S. Capitol building. Despite the conviction, Judge Nichols allowed him to be released from prison awaiting his appeal.
Kirschner said the move to release Bannon "outraged the legal community, including a number of judges."
"That was just a dead wrong decision," he said.
Newsweek reached out to Trump's campaign for comment via email.
Trump's spokespersons have previously rejected Kirschner's legal analyses, previously telling Newsweek that he is "a notorious trafficker of wild conspiracy theories and dubious legal analysis" who "has been shunned by the legal community at large."
Trump expressed outrage at the March 2024 trial date following the decision by Judge Chutkan.
"The date set today deprives President Trump of his Constitutional right to a fair trial, a seminal bedrock of America, and continues to expose the corruption of the witch hunts being thrown against President Trump," his campaign wrote in a statement.
DOJ special counsel Jack Smith, who oversaw the investigation that led to the charges against the former president, had requested a trial date of January 2, 2024.
Correction 12/27/23 10:58 a.m. ET: Glenn Kirschner served as an assistant U.S. attorney, not a U.S. attorney. The article has been amended to make that clear.
About the writer
Andrew Stanton is a Newsweek weekend reporter based in Maine. His role is reporting on U.S. politics and social issues. ... Read more