Despite the rapid pace of the prosecution against former President Donald Trump, it seems that special counsel Jack Smith is no longer in a rush to conclude his second contested case.
Prominent conservative legal scholar Jonathan Turley wrote a fascinating article last Friday. He observed that Biden Justice Department prosecutor Smith appears to be contemplating what lies ahead in his ongoing cases surrounding the January 6th events and the matter of classified documents. Previously, Smith would have been eager to see D.C. federal judge Tanya Chutkan schedule a conference on August 16th to discuss the timeline and issues moving forward.
But, everything shifted after a landmark Supreme Court ruling that now grants presidents absolute immunity from prosecution for official acts. Smith disclosed that his team is not yet prepared to present arguments about possible offenses President Trump may have committed related to the Capitol riots on January 6th, 2021.
Smith told the court, “The Government is still evaluating the new precedent established in the Supreme Court’s recent decision in Trump v. United States. The Government hasn’t yet determined the most suitable schedule for the parties to brief issues related to the decision,” as Turley noted on his law blog. Consequently, Smith is asking for a three-week break to prepare the best strategy to argue that Trump’s words or actions that day contributed to the violence and disruption of official congressional proceedings.
The question now is whether Smith is considering a significant move given the timing and the ruling. Could he potentially concede defeat or aim for a post-election trial? This would be out of character for Smith, who is known for pushing both the law and the calendar to their limits. However, it’s increasingly believed that he no longer views a trial as a feasible objective.
There’s also the possibility that Smith will do something some have speculated on over the past year: narrow down his case. Smith’s enthusiasm has often been his downfall, as shown in his 8-0 defeat in his conviction of former Virginia Governor Bob McDonnell. Smith has seldom shown restraint as a prosecutor.
In a similar case involving former Governor McDonnell, Smith successfully prosecuted him on bribery charges, only for the Supreme Court to overturn his conviction. This ruling grants officials significant flexibility in accepting gifts without a direct quid pro quo. As Turley suggests, Smith may have “overloaded” his felony charges against Trump with a plethora of alleged wrongdoings that he may need to pare down, especially considering his second case is on the verge of being dismissed.
A three-week delay will provide Smith with ample time to deliberate. However, it also cuts nearly a month from the calendar for internal discussion with the election just three months away. So, despite a judge ready to expedite the trial, Smith is requesting more time. It now seems inevitable that any trial will have to wait for the election results. As Turley highlighted back in 2023, the chances of a federal trial before the election were quite slim, effectively making voters the largest jury in history.
