The high-stakes push by President Trump to remove Judge Tanya Chutkan from his January 6 case comes even as that same judge will rule on a gag order that could mute the former president online and on the campaign trail. 

Mr. Trump’s latest motion, docketed on Sunday night, is a response to Special Counsel Jack Smith’s insistence that Judge Chutkan stay on the case. The prosecutor argues that critical comments from the jurist about Mr. Trump’s behavior were made in the context of courtroom proceedings, making them thin gruel for recusal.

Now, Mr. Trump maintains that “Judge Chutkan’s strongly stated suggestions that President Trump should be charged and imprisoned” make her recusal “mandatory.” His lawyers call “ludicrous” Mr. Smith’s position that a “judge may freely and publicly state that uncharged individuals” should be charged, “so long as she does so in a judicial proceeding.”

Judge Chutkan’s comments, which were made while she presided over other January 6 cases, involved speculation over Mr. Trump’s role that day in 2021. He argues that the comments will “undermine public confidence in her ability and willingness to provide a defendant the presumption of innocence that is guaranteed by the Constitution.”

Mr. Smith puts great store in the fact that comments of Judge Chutkan, such as, “People who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution,” were made in a courtroom context. Mr. Trump responds that despite their origin from the bench, they were “completely irrelevant to any issue before her prior to the instant case” and not judicial findings of fact “based on briefing and evidence.”

In an innovative argument, Mr. Trump proposes that when it comes to recusal, “what matters is the source of a judge’s statements, not where she made them,” meaning that just because Judge Chutkan spoke from the bench does not mean that her statements were informed by the legal rigor that would exempt them from serving as grounds for her disqualification.

The former president alleges that the “prosecution also fails to establish that Judge Chutkan had any judicial basis for her repeated suggestion that President Trump should be charged. Respectfully, she had none,” besides for the “conclusory” views of defendants that she sentenced that Mr. Trump “bears some undefined responsibility for the January 6 protests.”

Mr. Trump, in a footnote, observes that none of the January 6 defendants whose cases Judge Chutkan has adjudicated alleged that the former president “directed or encouraged anyone to enter the Capitol, undertake violence, or interfere with proceedings at the Capitol. Of course, no such evidence exists.” That seems like a preview of an argument he could make at trial. 

The defense maintains the “inescapable conclusion that Judge Chutkan formed her opinion from external sources,” and that her “comments about President Trump were entirely gratuitous and unnecessary” and informed by “pervasive news coverage” rather than evidence. This opens the question of whether the proceedings are “legitimate.” 

Mr. Trump uses the recusal question as a platform to telegraph his position that the prosecution as a whole is “a politically motivated effort by the incumbent administration to take out its most significant political opponent in a presidential campaign — the opponent who, by the way, is not only free, but has a strong lead in the polls.”  

The decision to recuse will initially be Judge Chutkan’s to make, and Mr. Trump tells her that the ”public interest is not in the perception of a rush to judgment or a show trial contaminated by the appearance of a partial presiding judge.” Anything less, he argues, would impair the “very legitimacy of these proceedings and cause irreparable damage to our judicial system.” 

One wonders, though, how Judge Chutkan will take the final line of Mr. Trump’s brief. She likely will not miss the acerbic allusion to her own quip from an earlier case involving the former president — “Presidents are not kings and plaintiff is not president.” Here, that is reworked to, “No president is a king, but every president is a United States citizen entitled to the protections and rights guaranteed by the United States Constitution.”