Have you heard of the “Federal Insurrection Matter?” Neither had we, at least not until the phrase surfaced in Judge Juan Merchan’s order denying President Trump’s motion that his hush money trial be delayed pending a Supreme Court ruling on whether he is entitled to immunity. Judge Merchan plans to plow ahead. Why, though, eschew the January 6 case’s given name — United States v. Trump — for his own infelicitous phrasing?

The first thing to say about the “Federal Insurrection Matter” is that there is no such thing. There is a federal matter — Special Counsel Jack Smith’s prosecution of Mr. Trump for allegedly attempting to overturn the results of the 2020 election. And there have been findings that January 6 was an insurrection, but those have been in state courts in New Mexico and Colorado. The convergence of the twain, though — insurrection and federal court — is a null set. 

That could come as a surprise, as there is a federal insurrection statute, and the events of January 6 involved the president of the federal government and the certification of the federal vote at the federal Capitol. Not one charge brought, though, against the more than 1,000 January 6 defendants — including Mr. Trump — was for insurrection. That shyness holds for DOJ prosecutors and Mr. Smith alike. Nary an insurrection indictment in sight.

There was, to be fair, one Federal Insurrection Matter, and it took the form of the second impeachment of Mr. Trump. The charge handed up by the House was for incitement to insurrection. The 45th president, though, was discovered by the Senate to be not guilty. So that matter concluded with a “not guilty verdict.” It is Mr. Trump who argues that the acquittal vote should count. It is Mr. Smith who takes the view that the acquittal means nothing. 

A person charged but not yet convicted of a crime is owed the presumption of innocence. What then, of someone not even charged with a crime? That is the scenario Judge Merchan is courting by repeated reference to Mr. Smith’s case as the “Federal Insurrection Matter.” In so doing, he courts prejudicing no less than two juries — the one that will sit at the District of Columbia, and his own, at Manhattan. Who would acquit an insurrectionist?

Judge Merchan’s determination that Mr. Trump’s bid for delay on the basis of the pending immunity ruling is “untimely” does not address the substance of the question, to be taken up by the Nine. That is “whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” Mr. Trump has made that argument in this case, unsuccessfully. 

The final word on immunity is yet to be uttered. Unless the judge knows something we don’t, would it not be prudent for Judge Merchan to await word from the highest court in the land? At least that appeal has been docketed, and a date set to hear its contentions. Insurrection is Chekhov’s gun that never fired. We understand the, say, “Federal Sarbanes-Oxley Matter,” one law being used against the J6 rioters, lacks the same ring, but that is the matter brought before the federal court by Mr. Smith.