Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno.
There may be some diabolical machinations afoot at the U.S. Department of Justice, as normally aggressive Special Counsel Jack Smith took an uncharacteristic timeout and asked for a delay in his response in the trial of former President Trump on January 6.
Smith, who has repeatedly stressed that the public must have answers about Trump’s election interference efforts before the election, was ordered by Judge Tanya Chutkan to consult with Trump’s defense attorneys and propose a timeline by Aug. 9 to be discussed at an Aug. 16 hearing. Instead, Smith filed a two-page joint status report saying he needed more time to assess the impact of U.S. Supreme Court immunity and asked for another status report to be filed on Aug. 30.
Unsurprisingly, Trump’s lawyers did not oppose the postponement. Judge Chutkan granted Smith’s request – not surprising, since both the prosecution and defense agreed – and the new hearing date is now September 5, just 60 days before the election.
Smith’s team and the Justice Department had about forty days to analyze how best to proceed in light of the Supreme Court’s pro-Trump ruling. While the ruling likely limited Smith’s case in some ways—such as by rendering harmless any communication between Trump and the Justice Department, no matter how corrupt—the ruling’s main effect was to send the case back to Judge Chutkan, who would have to clarify exactly what evidence would be admitted at trial.
Both the D.C. Circuit and Judge Chutkan responded quickly after the high court remanded the case to them, and both the appeals court and the trial court responded within a day of the case being remanded, so it’s hard to understand why Smith wants more time just to suggest a timeline.
Having worked in the Justice Department’s executive offices, I know exactly what Smith means when he talks about participating in “consultations with other parts of the Justice Department.”
Such “components” likely include the Office of the Assistant Attorney General, the Criminal Division, the Office of the Legal Counsel, the Office of the Attorney General, and the Office of the Solicitor General. The Justice Department – like many large agencies – is notorious for holding constant meetings to establish positions and policies, but there seems to have been plenty of time to sort this out already.
In fact, commentator Norm Eisen, CNN legal expert and founder of the States United Democracy Center, expressed great disappointment in Smith’s decision, calling it a mistake and pointing to the analysis by the online forum Just Security about how much of the case survives the Supreme Court ruling. Just Security’s analysis is quite compelling and includes a color-coded annotation of Smith’s indictment. It’s hard to imagine that the Justice Department wouldn’t have been able to produce a similar analysis in the same amount of time.
Donald Trump delivers a speech during a campaign rally at the Reno-Sparks Convention Center in Reno, Nevada, on December 17, 2023.
Justin Sullivan/Getty
When interpreting the signs I come to several explanations.
For me, the main issue is the disagreement between Smith’s team, which wants to act quickly, and the Justice Department leadership (AG Merrick Garland), which has concerns about moving aggressively so close to the election. One of the possible next steps would be a so-called “mini-trial” with witnesses to determine which of Trump’s actions were actually official acts subject to immunization. Such a trial – if held before the election – would very publicly remind voters of Trump’s actions and potentially bring to light new and incriminating information.
Given Garland’s fears that the Justice Department could be weaponized by the Biden administration (and perhaps the memory of former FBI Director James Comey reopening the investigation into Hillary Clinton’s emails just days before the 2016 election), it’s understandable that Garland would want to clarify many more details before moving forward.
Other possibilities are that Smith may want to rewrite his indictment to make it less vulnerable, or even charge previously unindicted co-conspirators. This approach, some commentators have suggested, takes advantage of the fact that an actual trial before the election has been made impossible by the Supreme Court’s long deadline for a decision.
Independent journalist Marcy Wheeler also theorizes that the Supreme Court’s decision on the definition of obstruction of justice under 18 USC Section 1512 (c)(2) will force the Justice Department to analyze how that decision will affect the Trump case, which has already led to delays and some rewriting of charges against defendants charged in what Wheeler calls “crime scene cases” — acts of violence on January 6.
Jack Smith may actually be playing a sort of “long game,” as it is reported that he plans to continue pursuing Trump’s cases after the election and up until the inauguration. In that scenario – if Trump loses – that extra time would have been put to good use. If Trump wins, however, that would all be moot and the country would have to live with the consequences of the Supreme Court’s delay and the time it took the Attorney General to appoint a special counsel to investigate and prosecute Trump.
