Jack Smith Asks for More Time

Late today, lawyers in the Special Counsel’s office and lawyers for Donald Trump filed the joint status report that wasn’t due until tomorrow in the Trump election interference case in the District of Columbia. The Special Counsel advised the court that it “continues to assess the new precedent” laid down by the Supreme Court creating the doctrine of presidential immunity and went on to ask the court for an additional three weeks to file “an informed proposal regarding the schedule for pretrial proceedings moving forward.” Trump’s lawyers didn’t oppose Jack Smith’s request. Now the timeline is up to Judge Chutkan.

What does that mean, and why is the government asking for more delay in the case? Those are legitimate questions, but I would not be quick to criticize the Justice Department here.

Part of the answer comes in the pleading itself, where Smith relates that under the relevant portion of the special counsel regulations, he is required to consult with other components in DOJ before moving forward: “A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures. Should the Special Counsel conclude that the extraordinary circumstances of any particular decision would render compliance with required review and approval procedures by the designated Departmental component inappropriate, he or she may consult directly with the Attorney General.”

Here, the parties’ task is to provide the court with a schedule for moving forward, but it’s deciding what events belong on that schedule that is problematic. Smith has an indictment that consists of four counts, 45 pages of allegations, and a mountain of evidence. The Supreme Court held that:

• A former president has absolute immunity from criminal prosecution “for conduct within his exclusive sphere of constitutional authority,” shorthanded as core presidential conduct.

• A former president has “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”

• A former president has no immunity for “unofficial” acts.

To decide what to put on the case calendar, Smith has to come up with a plan for how decisions should be made about which of his charges and what among his evidence falls into each of these categories. The Court provided little guidance on making these decisions, other than specifying that Trump’s conversations with officials at the Justice Department were official acts subject to immunity.

Ultimately, the decisions will be up to Judge Chutkan, but first, the parties must present their arguments. We don’t know yet whether that will come in briefs, in evidentiary proceedings, or through some other mechanism. The Trump team has an easy job. In their view, everything in the indictment will fall within the scope of immunity. The government has a much more nuanced assignment. They must make sure that they get these assessments right—which ultimately means getting it right in the eyes of the Supreme Court— because Trump will get to appeal Judge Chutkan’s decision again before the case can go to trial. The Court’s view is that immunity means a former president is entitled to a pretrial appeal so that he isn’t improperly forced to go to trial over conduct that should be covered by that immunity. So, now that they’ve set out their rule on the scope of immunity, they will have to review Judge Chutkan’s decisions applying that rule to the charges and evidence in this case before trial.

In other words, this case isn’t going to trial before the election. And getting it right matters more than going fast.

That’s exactly why the Special Counsel is required to consult with other components, although it’s undoubtedly a requirement that the office chafes under. I didn’t like it any better when, as a sitting U.S. Attorney, I was required to consult with a variety of offices in Main Justice before proceeding on certain types of matters. For one thing, I was always certain we had reached the correct decision inside of our office. For another, I disliked the delay. But something I learned through the process was that you could go fast alone or far together. The opportunity to have some of the smartest lawyers in the country pushing back against decisions, making contrary arguments, and testing conclusions means that the Special Counsel will come out on the other side with decisions that are that much stronger.

And when you’re talking about one of the most important indictments ever brought by the Justice Department (following a decision by the Supreme Court that will go down in history as one of its worst and that seriously interferes with the indictment), you need to make sure that you’ve got it right.

The Special Counsel has several possible paths forward, and it’s very likely that, inside of DOJ, people are advocating for different approaches. There are different options, all with pluses and minuses.

Some have argued that the government should file a superseding indictment designed to address the Supreme Court’s concerns. But it’s premature for the government to negotiate with itself over what stays in and what goes out of the indictment before Judge Chutkan rules. If it’s a matter of striking material from the indictment after she rules, she has the ability to do that under the Federal Rules of Criminal Procedure. If at the end of the process, the government sees reason to supersede, offering new theories or perhaps even new charges or adding additional defendants, then it would be appropriate to go back to the grand jury. But as I argued in this piece earlier this week for the Brennan Center, it’s critical that Smith present all of his arguments to Judge Chutkan and obtain her rulings, meticulously working through the charges and the evidence, so there is a strong record that can survive on appeal. There will be plenty of time for that process to occur, and it will be better organized, and perhaps even streamlined, if Smith makes productive use of the additional time he is asking for.

Others have suggested DOJ may be hesitant to proceed this close to the election. That seems less likely. For one thing, the three weeks of delay they’ve requested pushes proceedings closer to the election, not further from it. And the informal prohibition on taking overt action close to an election applies to unindicted cases. Prosecutors avoid executing search warrants or indicting new matters in the run-up to an election to avoid influencing the outcome. Here, where a case is already indicted, the schedule is largely up to the Judge, and the Speedy Trial Act clock is ticking, those concerns don’t apply. The public is already aware of the charges against the candidate/defendant. It’s possible DOJ could apply some special rule in this unusual case, but hopefully they’ve learned that nothing good happens when Trump receives special treatment other defendants aren’t entitled to.

So, three more weeks. That means this case, and proceedings that will determine whether Trump committed crimes that can’t be charged because they were core official acts or whether his conduct falls outside the scope of immunity and can still be charged, will be underway just as Americans begin to vote. But that’s not DOJ’s concern. The Special Counsel’s job is to move his case forward, as quickly as possible but taking due care to get it right. That’s where we find ourselves.

Lots more coming! Thanks for being here with me at Civil Discourse for it.

We’re in this together,

Joyce