President Trump’s request that Judge Tanya Chutkan recuse herself from his January 6 case ventures the argument that when it comes to the presumption of innocence, the jurist has already — in effect, if not in intent — found the 45th president guilty. 

The motion, which will in the first instance be decided by Judge Chutkan herself, brings into focus a litigation strategy that appears to borrow from Mr. Trump’s political one. The 45th president now appears to be campaigning against Judge Chutkan, suggesting that her sympathy for the Black Lives Matter protests and antipathy to the January 6ers justifies a change in courtroom personnel.    

Mr. Trump argues that “this trial is a test of the very foundations upon which our government is built” and that Judge Chutkan has “in connection with other cases, suggested that President Trump should be prosecuted and imprisoned.” These, the former president’s attorneys reckon, are “her core views that are unlikely to change.”  

In a case against one January 6 rioter, Christine Priola, heard before Special Counsel Jack Smith handed up charges against Mr. Trump, Judge Chutkan observed that the “people who mobbed that Capitol were there in fealty, in loyalty, to one man – not to the Constitution,” a man who, “by the way, remains free to this day.” The reference was to the 45th president. Mr. Trump’s lawyers call this allusion “poignant,” given his current criminal predicament. 

Elsewhere, Judge Chutkan mused to a defendant, Robert Scott Palmer, that the “people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged.” That too appears to be a reference to Mr. Trump, who has now had charges handed up against him. 

Then there was  Judge Chutkan’s memorable line when she ruled against Mr. Trump in his effort to block the January 6 committee from gaining access to White House records: “Presidents are not kings, and Plaintiff is not President.” 

Mr. Trump notes that the perception of impartiality is especially urgent when the “Department of Justice answers to a President who is prosecuting his main, leading opponent in an election that will take place in just over a year.” This means that “only if this trial is administered by a judge who appears entirely impartial could the public ever accept the outcome as justice.”

The former president, in a campaign missive this morning, shined a spotlight on comments Judge Chutkan made during yet another hearing, where she mused that to compare the protests that erupted following the death of George Floyd with the chaos that transpired on January 6, 2021, would be to engage in “false equivalency.” She warned of the “very real danger that the January 6 riot posed to the foundation of our democracy.” 

Judge Chutkan has also spoken of the “violent mob” that sought to “overthrow the  lawfully elected government” on January 6, underscoring Mr. Trump’s contention that her mind is made up when it comes to that day. She allowed that “some” of the Black Lives Matter protests “became violent,” but maintained that as a whole they were “mostly” peaceful.

During a sentencing hearing in 2021, Judge Chutkan maintained that “some have compared what took place on January 6 with other protests that took place throughout the country through the past year and have suggested that the Capitol rioters are being treated unfairly. I flatly disagree.” 

In contrast, another jurist, Trevor McFadden, observed during a sentencing hearing: “I think the United States  attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city,” a reference to the events of the summer of 2020, which roiled the District of Columbia along with other urban centers. 

At the New Yorker Festival in 2021, Attorney General Garland said: “I’m quite aware that there are people that are criticizing us for not prosecuting sufficiently and others complaining we are prosecuting too harshly. This is part of the territory for any prosecutor in any case.” Special Counsel Jack Smith, who is leading the prosecution of Mr. Trump, now reports to General Garland. 

While the initial decision whether to recuse will be Judge Chutkan’s, such a ruling could be appealed to the riders of the District of Columbia Circuit of the United States Court of Appeals. Federal law mandates that recusal is in order when a judge’s impartiality can “reasonably be questioned.”  

In 1994, the Supreme Court explained in Liteky v. United States that “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings” do not warrant recusal “unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”