Special counsel Jack Smith has asked for additional time to decide how to proceed with the Jan. 6 prosecution of former President Trump, asking for an extension to a series of deadlines that were set when the case returned to a lower court.
Following the Supreme Court’s victory for former President Trump, ruling that as a former executive officer he enjoys some protection from prosecution, U.S. District Judge Tanya Chutkan ordered Smith and Trump’s lawyers to submit joint proposals on how to move the case forward.
By asking for the submission to be postponed for three weeks, Smith is likely to disappoint those who have been calling for an evidentiary hearing with in-person testimony from witnesses to be held before the election.
It also shows that Smith’s team is still figuring out the best way forward after the Supreme Court ruled that Trump is immune from prosecution for major actions he took as president and for all his other official duties.
“The Government continues to evaluate the new precedent set forth by the Supreme Court last month in Trump v. United States,” Smith’s team wrote in the filing.
“Consultations are progressing well, but the government has not made any final decisions on the optimal timeline for outlining the issues relevant to the decision.”
The lawsuit says Trump’s team did not object to the request.
Smith suggested the parties make their arguments on Aug. 30 instead of Friday, which would require Chutkan’s scheduled Aug. 16 hearing to be postponed as well.
Smith faces tough choices following the Supreme Court’s ruling, including whether to narrow the charges filed in the indictment.
The Supreme Court explicitly barred prosecutors from reviewing Trump’s pressure campaign at the Justice Department, as he planned to appoint a new attorney general to the department and investigate baseless claims of election fraud.
“President Trump will certainly be immune from prosecution for alleged conduct related to his discussions with Department of Justice officials,” the court wrote, adding that executive branches have “absolute discretion to decide which crimes to investigate and prosecute.”
Trump’s pressure campaign against former Vice President Mike Pence also involves “official business.” The courtHe added that President Trump is presumed to have immunity in this matter.
The Court went further, writing that “Courts cannot inquire into the President’s motives,” raising the question of the extent to which those conspiracies could be used as evidence in the case.
Still, some legal experts eager to prosecute Trump see a silver lining in the case and have suggested Smith call for witness hearings to determine which parts of the indictment cover official conduct and which cover private conduct.
Norman Eisen, who served as counsel for Democrats in Trump’s first impeachment trial, said such hearings would serve as a “mini-trial” for Trump and allow the public to better understand the case against him just before the election.
“The verdict should have been made a long time ago, so the minimum the justice system can do is to some extent clarify the allegations and hold a mini-trial to determine whether they should be exonerated,” Eisen previously told The Hill.
In addition to internal Justice Department deliberations, Smith cited other challenges hampering the case, noting that Trump’s legal team is unlikely to be available the week of September 16, when Trump is scheduled to be sentenced in his New York hush money trial.
Updated at 7:43pm ET.
