Special counsel Jack Smith asked for additional time to settle how to proceed with former President Trump’s Jan. 6 prosecution, asking to bump back a swift set of deadlines ignited when the case returned to a lower court.
District Court Judge Tanya Chutkan had ordered Smith and Trump’s attorneys to jointly propose how to move forward in the case after the Supreme Court handed the former president a victory in determining he has some protection from prosecution as a past executive.
By requesting a three-week delay in that filing, Smith is likely to disappoint those who have called for him to ask for an evidentiary hearing with live witness testimony ahead of the election.
It also shows that Smith’s team is still grappling with the best path forward after after the Supreme Court ruled Trump is immune from prosecution for core actions he took as president and presumptively immune for all other official acts.
“The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States,” Smith’s team wrote in the filing.
“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.”
The filing notes Trump’s team did not object to the request.
Smith proposed that the two parties weigh in on Aug. 30, rather than Friday. The Aug. 16 hearing scheduled by Chutkan would likewise then need to be delayed.
Smith is faced with difficult choices following the Supreme Court’s decision, including whether to narrow the charges brought within the indictment.
The court explicitly barred prosecutors from weighing Trump’s pressure campaign at the Justice Department, where he planned to install a new attorney general who would investigate his baseless claims of election fraud.
“Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” the court wrote, adding that the executive branch has “’absolute discretion’ to decide which crimes to investigate and prosecute.”
Even Trump’s pressure campaign on former Vice President Mike Pence involves “official conduct,” the court wrote, adding that Trump is presumptively immune on the matter.
The court also went a step further, writing that “courts may not inquire into the President’s motives,” raising questions over to what extent those plots may serve as evidence in the case.
Still, some legal observers eager to see Trump prosecuted saw a silver lining in the case, suggesting Smith call for an evidentiary hearing with witnesses in order to determine what aspects of the indictment cover official acts versus private behavior.
Norman Eisen, who served as counsel for Democrats in Trump’s first impeachment, said such a hearing would serve as a “minitrial” of Trump and allow the public to better understand the case against him shortly before the election.
“We should have had a verdict long ago, so the least the judicial system can do is give us a minitrial to — to some extent — air the allegations and offer a determination of whether they’re immune or not,” Eisen previously told The Hill.
Beyond the Justice Department’s own internal deliberations, Smith outlines other challenges impeding the case, noting that Trump’s legal team would be unavailable the week of Sept. 16, when Trump is set to face sentencing in his New York hush money trial.
Updated at 7:43 p.m. EST.