For over a year, Special Counsel Jack Smith has made one element the overriding priority in his prosecution of former president Donald Trump: speed. Smith repeatedly moved to curtail Trump’s appellate rights and demand expedited appeals to try to secure a conviction before the election. In that effort, he found an equally motivated judge in U.S. District Judge Tanya S. Chutkan, who virtually turned her court into a rocket docket to try Trump. Now, in a neck-breaking change of direction, Smith is trying to slow down Chutkan who appears again ready to pull out the stops in this case.
After the mandate in the case was returned to her, Judge Chutkan immediately resumed her high-speed scheduling to look at the pre-trial issues after the Court reversed her earlier rulings on the basis of presidential immunity.
The past problem with a court making speed the priority is that it does not allow much time to create a record. The remand will now require Judge Chutkan to do so on the question of what charges and evidence may be barred under the ruling in Trump v. United States.
As it has in the past, the c=Court adopted a three-tiered approach to presidential powers based on the source of a presidential action. Chief Justice John Roberts cited Youngstown Sheet and Tube Co. v. Sawyer, in which the court ruled against President Harry Truman’s takeover of steel mills.
In his famous concurrence to Youngstown, Justice Robert Jackson broke down the balance of executive and legislative authority between three types of actions. In the first, a president acts with express or implied authority from Congress. In the second, he acts where Congress is silent (“the zone of twilight” area). In the third, the president acts in defiance of Congress.
In this decision, the Court adopted a similar sliding scale. It held that presidents enjoy absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial or private actions.
Only hours after receiving the mandate, Judge Chutkin scheduled an Aug. 16 conference to lay out the schedule and issues going forward. The former version of Jack Smith would have been delighted. He did not even see the need for the right for an en banc appeal in previously pushing for a pre-election trial.
Now, however, Smith is telling Judge Chutkin to slow down already.
Smith told the court that “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.”
He has asked for a three-week delay to further consider what he wants to do. It is not clear if the press and pundits will now charge Smith with “slow walking” the case.
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.
His overloaded criminal complaints created this disaster for his team. In Florida, Smith unwisely loaded up the prosecution with controversial charges on the retention of classified material. It not only triggered difficult challenges but slowed the case to a crawl as the parties dealt with classification laws. Had he proceeded solely on obstruction charges, he might have secured his trial before the election (and before the recent ruling on immunity). Even if the reduced case was heard by the Court on immunity, an obstruction case would have been far stronger for Smith.
The same is true with the D.C. case. Smith loaded up the case to raise the January 6th speech and other issues. Most were unnecessary, but Smith used his press conference to denounce the January 6th riot.
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.
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.