Special Counsel Jack Smith’s ringing defense of Judge Tanya Chutkan’s stewardship of his January 6 case surfaces an emerging clash between prosecutor and judge on the one hand and President Trump on the other. 

In asserting that Judge Chutkan, who was appointed by President Obama, “has a duty to continue to oversee this proceeding,” Mr. Smith is hoping to keep in place a judge who has garnered attention for her harsh sentencing of January 6 defendants — she has called the crowd that day a “violent mob” —  and her courtroom criticism of the 45th president, including for his use of social media.

The rub for Mr. Trump is that, at least initially, the question of whether Judge Chutkan should preside over his case will be Judge Chutkan’s to answer. It is clear, though, that Mr. Smith wants to keep the jurist on the bench, even as Mr. Trump wants a different judge.  

That animates his response to the former president’s request that Judge Chutkan step aside on account of his allegation that she “suggested that President Trump should be prosecuted and imprisoned.” He calls these her “core views” that are “unlikely to change.” They were shared in the course of other January 6 cases heard by the judge. 

For Mr. Trump, the legal standard for recusal is met by Judge Chutkan’s comments that “people who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution.” Recusal is mandated when a judge’s “impartiality might reasonably be questioned.” Judge Chutkan has also denounced “false equivalency” between the Black Lives Matter riots of 2020 and January 6. 

Now comes Mr. Smith to say that “there is no valid basis, under the relevant law and facts,” for Judge Chutkan to step aside. He casts her comments about Mr. Trump as “factually accurate” and “responsive to arguments presented to the Court” by other January 6 defendants, who sought to mitigate their own guilt — and prison terms — by fingering Mr. Trump as the prime culprit.

In a case from 1994, Liteky v. United States, the Supreme Court ruled that recusal is in order when a judge displays “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Mr. Smith tells Judge Chutkan that her own  “challenged statements fall well short of that mark.”

Mr. Smith notes that courts in the District of Columbia have developed a “presumption against disqualification,” a lower court  version of the “duty to sit” that governs the Supreme Court. That obligation exerts greater force because unlike lower court judges, justices cannot be replaced or substituted. 

The aversion to recusal finds expression in the high court maxim that “a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” The District of Columbia Circuit of the United States Court of Appeals has even held that a disqualification motion can be a “means to tarnish the reputation of a federal judge.”

The special counsel observes that the standard for recusal based on “intrajudicial” statements—comments made by a judge while she is doing her job— is higher than for statements made outside the courtroom. Statements from the bench are disqualifying only when they “display a deep seated favoritism or antagonism that would make fair judgment impossible.”

That bar was met in a Supreme Court case from 1921, Berger v. United States, which overturned the disqualification from office — on the basis of Section Three of the 14th Amendment —  of a congressman, from Wisconsin, Victor Berger. That same provision is now being marshaled against Mr. Trump in respect of  January 6. Mr. Trump, like Berger once did, faces Espionage Act charges.  

Berger was convicted on those charges by one of the most famous judges in history, Kenesaw Mountain Landis, who would later become a legendary commissioner of major league baseball. The Supreme Court, though, reversed Landis’s ruling, and allowed Berger to sit in the House of Representatives. 

The justices found that Landis merited removal from the case based on his observation that “One must have a very judicial mind indeed not to be prejudiced against the German-Americans in this country. Their hearts are reeking with disloyalty.” In the Trump case, the question will be whether Judge Chutkan can fairly consider that she has not gone that far.