Special counsel Jack Smith is no longer in much of a hurry to move the case he’s built against former President Donald Trump at a speedy pace, despite essentially making it his entire life’s work at this stage in his career. Time and time again, Smith sought to slap limits on Trump’s appellate rights and put in demands for expedited appeals in order to try and get a conviction before the November election. It’s nothing but lawfare designed to try and either remove Trump from the ballot or to dissuade individuals from casting ballots for him when the day rolls around.
He was paired up with U.S. District Judge Tanya S. Chutkan who wanted to provide Smith all of the assistance he needed in order to move the case at the speed of light. Now, however, Smith wants Chutkan to slow everything down, despite her being ready to put the pedal to the metal, according to legal expert Jonathan Turley.
“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,” Turley wrote on his website. “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.”
Turley then said, “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,” he explained.
The legal expert then revealed that in this decision, the Court adopted a very similar sliding scale. It states that president do indeed have absolute immunity for actions that are well within their “exclusive sphere of constitutional authority,” while they also receive presumptive immunity for any other official acts. If the actions they engage in are private or unofficial, then no immunity applies. Seems pretty simple and straightforward, but you have to remember, it’s liberals we’re talking about.
Just hours after the mandate was received, Judge Chutkan put a conference on the schedule for Aug. 16 in order to help fill out the rest of the schedule and to discuss other issues as the case moves forward. Normally, Smith would have been stoked by such a conference. Previously, he didn’t even see the need for having an en banc appeal in pushing for a pre-election trial.
His tune has changed. Smith is now trying to get Judge Chutkan to slow her roll. In fact, he spoke to the court saying, “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.”
Smith has formally requested a three week delay in order to think about how he would like to proceed. Will such a request, if granted, result in members of the left-wing media charging him “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.
According to Turley’s report on the matter, Smigh has a well established problem with overloading criminal complaints filed with his office.
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.
Having a three-week delay will provide the special counsel will provide him with the proper time to consider the matter more deeply. In exchange for that time, it removes a whole month from the calendar and given the election is just three months away, for Smith, that time is critical.
In all honesty, it’s probably too late for Smith to get anything to happen before the election and he knows it. The plot may have been thwarted.
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