Judge Tanya Chutkan’s denial of President Trump’s motion to strike from his indictment language he calls “inflammatory” is a victory for Special Counsel Jack Smith’s attempt to hold the former president responsible for an insurrection without charging him for it. Never mind that he was actually acquitted of it by the Senate.

The ruling means that the special counsel’s January 6 indictment will stand as drafted. It alleges that Mr. Trump “directed” his supporters to the “Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.” 

Mr. Smith has charged Mr. Trump with various conspiracy charges, but not with any related to insurrection. The former president’s contention is that in the absence of such a charge, references to how crowds “broke through barriers cordoning off the Capitol grounds” are prejudicial, meaning they could inappropriately sway a jury. 

The special counsel also writes that Mr. Trump “refused” to “issue a calming message aimed at the rioters” and instead “issued a Tweet intended to further delay and obstruct the certification.” Mr. Trump worries that these invocations of January 6 could lead jurors to “wrongfully impute fault” to him for the chaos at the Capitol, possibly through “media coverage relating to the case.” 

Judge Chutkan is not convinced. Not only does she reject Mr. Trump’s motion to edit the indictment, she accuses the former president of himself “making numerous inflammatory and unsupported accusations,” the very thing about which he complained in respect of the special counsel. The jurist notes that the jury will not be provided with a copy of the indictment, per district practice.

Mr. Trump’s team is likely especially attuned to prejudice — the Constitution ordains that defendants are entitled to “impartial” juries — because of where the trial will be held. President Biden garnered more than 90 percent of the vote in the District of Columbia, and Judge Chutkan has handed down stiff sentences to several January 6 defendants. 

Jury selection, though, is not set to begin until the beginning of January. Mr. Smith’s indictment was handed up in August, meaning that prospective jurors will have plenty of time to encounter the indictment. Judge Chutkan asserts that the safeguards of jury selection “will allow the court to examine and address the effects” of pretrial publicity on the jury pool. 

Judge Chutkan reasons that if an allegation is “relevant,” it stays in the indictment. Mr. Trump, though, accuses the special counsel of seeking to “try President Trump for crimes the grand jury never charged, based on actions President Trump did not take, in a place he never was on January 6.” He adds that the indictment does not charge him “with causing, or participating in” the riot. 

Mr. Smith contends that January 6 was the culmination of Mr. Trump’s “criminal conspiracies to overturn the legitimate results of the presidential election.” The special counsel accuses Mr. Trump of having fueled the mob with “knowingly false claims of election fraud.” Not one of more than 1,000 defendants charged in relation to the violence at the Capitol have been charged with insurrection.

While no federal court has found that an insurrection occurred, state courts have made that determination, both in cases relating to the disqualification clause of the 14th Amendment, which bars from the ballot any officeholder who has “engaged in insurrection or rebellion” against America. While those precedents do not bind Judge Chutkan, they could find their way into her courtroom.