Special Counsel Jack Smith’s insistence that he be permitted to cite the January 6 riot at the Capitol as evidence against President  Trump, who alleges that such an “inflammatory” allegation could prejudice a jury, is a gamble that that day’s chaos will be conducive for a conviction. 

The special counsel’s written request that Judge Tanya Chutkan permit the January 6, 2021, riot into Mr. Trump’s trial suggests that the prosecutor wants to tie the former president to the storming of the Capitol. More than 1,000 defendants have already pleaded guilty or been convicted in connection with that occasion. Some have received harsh prison sentences.

Mr. Trump, though, has not been charged with either incitation or insurrection, despite the role his rhetoric about a stolen election could have played in encouraging the rioters. It appears likely that his lawyers’ effort to edit the January 6 riot out of Mr. Trump’s indictment is previewing a broader push by the former president to keep that event at arm’s length and miles away from the jury’s eyes. The searing footage — there are thousands of hours of it — could help convict Mr. Trump if Mr. Smith can prove its relevance to the judge.

Access to that mountain of evidence is likely appealing to Mr. Smith, and it is not an unfamiliar archive to Judge Chutkan, a veteran of January 6 cases who has meted out stiff sentences to several defendants. She has also taken the opportunities presented by those trials to criticize Mr. Trump, comments that now serve as grist for his efforts to remove her from the case.

Mr. Smith’s contention is that Mr. Trump “is responsible for the events at the Capitol on January 6,” which was the “culmination of the defendant’s criminal conspiracies to overturn the legitimate results of the presidential election.” That account, though, is one not without risk for the government, which appears to be trying to graft the January 6 congressional committee’s conclusions onto his criminal case.

The Constitution, though, ordains that “no Bill of Attainder or ex post facto Law shall be passed,” meaning that the principle of separated powers demands that lawmakers not play the roles of prosecutors. The January 6 committee, though, behaved very much like criminal investigators and prosecutors, and its hearings often resembled trials, albeit marked by partisanship and free from the rules of evidence.

The January 6 committee, dominated by Democrats of the last congressional session, reached the “overriding and straight-forward conclusion” that “the central cause of January 6th was one man, former President Donald Trump,” and that “none of the events of January 6th would have happened without him.” 

The committee recommended a range of criminal referrals for Mr. Trump, including incitement to insurrection, the same charge that the former president was acquitted of at impeachment by the Senate. Mr. Smith declined to follow the committee’s advice and omitted an insurrection count from his indictment. Now, though, he is attempting to rebuff Mr. Trump’s motion to strip the riot from the indictment, anyway.  

Mr. Smith’s theory is that mentioning the riot is “neither prejudicial nor inflammatory” because Mr. Trump “used multiple means to attempt to obstruct the congressional certification, including by directing an angry and violent crowd to the Capitol.” The special counsel alleges that the riot was one of the means by which Mr. Trump attempted to effect the charged conspiracy.

The prosecutor points to Mr. Trump’s speech at the Ellipse on January 6, 2021, specifically the portions of it where the former president  “reiterated knowingly false claims of election fraud” before a highly exercised crowd about to march on the Capitol. Mr. Trump told them that “we fight like hell” but also that “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

Mr. Smith also draws a link between Mr. Trump’s tweet that Vice President Pence  “didn’t have the courage to do what should have been done” — refuse to certify the election results, as he was constitutionally obligated to do — and the crowd’s chants of  “Hang Mike Pence” and “Traitor Pence.” The government argues that Mr. Trump “used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President.” 

In the indictment, Mr. Smith called the January 6 riot “an unprecedented assault on the seat of American democracy.” In Mr. Trump’s filing, though, he observes that Mr. Smith “does not blame a January 6, 2021, speech given by President Trump for these actions.” If he did, Mr. Trump reasons, he would have been charged with insurrection.