After months of rushing his prosecution of former President Donald Trump, special counsel Jack Smith suddenly seems in no hurry to near the end of his second embattled case.
Conservative legal scholar Jonathan Turley wrote on Friday that he believes the Biden Justice Department prosecutor Smith can read the writing on the wall as it pertains to his ongoing J6 and dead classified documents cases. The “former version of Jack Smith,” he argues, would have been delighted to see D.C. federal judge Tanya Chutkan move quickly to set an August 16th conference to lay out the schedule and issues going forward; now, in the wake of a landmark Supreme Court ruling granting presidents absolute immunity from prosecution of official acts, Smith said his team is not ready to present arguments for what crimes President Trump may have committed related to the January 6th, 2021 riots at the Capitol.
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Smith told the court, “The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States. Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision,” Turley wrote on his law blog Friday. Instead, Smith is asking for a three-week reprieve as he prepares on how best to argue that Trump’s words or actions that day contributed to violence and interference with official congressional proceedings. Turley writes:
The question is whether Smith is considering a drastic move in light of the calendar and the ruling. There is, of course, always the possibility that he either throws in the towel or opts for a post-election trial. That would certainly go against the grain of Smith, who has always pushed both the law and the calendar to the breaking point. However, as some of us have been arguing for months, he may no longer view a trial as a plausible objective.
There is also the possibility that Smith will do something that some of us have discussed over the last year: pare down his case. Smith has always been undone by his appetite. As shown in his 8-0 reversal in his conviction of former Virginia Governor Bob McDonnell, Smith has rarely shown moderation as a prosecutor.
In the latter case, Smith successfully prosecuted former Gov. McDonnell on bribery charges only to see his conviction overturned by the Supreme Court, another decision that grants elected officials wide latitude in accepting gifts without a direct quid pro quo. As he did then, Turley argues, Smith “loaded up” his felony charges against Trump with a plethora of wrongdoings that he may now pare back as he realizes he may be on the verge of seeing his second case dismissed. In July, Florida U.S. District Judge Aileen Cannon tossed his case against Trump alleging that he improperly handled classified documents found in his possession after an FBI raid of Mar-a-Lago.
“A three-week delay will give Smith ample time (in addition to the weeks following the Supreme Court decision) to deliberate. However, it will take roughly a month off the calendar for just internal debate with the election only three months away,” the George Washington University law scholar writes. “So, even with a judge who appears chomping at the bit to resume the fast track to trial, Smith now wants more time. Even before this request, it was hard to see how a trial could be held before the election. Now it seems a virtual certainty that any trial will have to await the results of the election. As I wrote in 2023, the odds were against a federal trial before the election, which would convert the voters into the largest jury in history.”
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