Are Jack Smith and Merrick Garland Outsmarting Trump — or Playing Into His Hands?

Special Counsel Jack Smith’s request for a three week delay in the January 6 case secured could amount to a new lease on life for the troubled prosecution — or an admission that the pursuit of President Trump is at an impasse.Judge Tanya Chutkan granted that request after Trump signaled that he did not object to the petition for extra time to digest the Supreme Court’s ruling that official presidential acts are presumptively immune. A subset of those enjoy “absolute” immunity, and unofficial acts are not immune. Mr. Smith, in requesting a delay, cited the need for “consultation with other Justice Department components.” That suggests that the decision was not his alone and telegraphs the involvement of Attorney General Garland. It was Mr. Garland who appointed Mr. Smith, two days after Trump signaled his candidacy to regain the White House. Judge Aileen Cannon in South Florida ruled that the appointment of Mr. Smith was unconstitutional and dismissed the charges.Mr. Garland’s caustic criticism of that ruling threw into sharp relief — and on national television — his involvement in the cases against Trump, notwithstanding the chief prosecutor’s description of Mr. Smith’s “independent” sphere of action. Now it appears that Messrs. Smith and Garland have concluded that more time is advantageous as they prepare for the “mini trial” that will determine which evidence is protected and which is fair game. That choice has elicited criticism from those partisan to Mr. Smith’s efforts that the government is playing into its defendant’s hands. The liberal lion Laurence Tribe declared that he finds “it hard not to see the slow hand of AG Garland here. He desperately needs a sense of urgency that his leadership has lacked from very early on. He has integrity and analytical intelligence but lacks the needed fire.”This line of criticism echoes one reportedly voiced by President Biden himself. The Times reports that Mr. Biden “said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor.” Trump argues that such insinuations are the mark of a political prosecution and one that is unlawfully “selective and vindictive.” Judge Chutkan, though, last week rejected the former president’s efforts to dismiss the case on those grounds as dependent on “unsupported assertions.” An erstwhile deputy to Special Counsel Robert Mueller, Andrew Weissman, likewise pulls no punches, noting, also on X, that “This motion reeks of tension between Jack Smith (wanting to move fast) and AG Garland (who is very careful and cautious). At the expense of delaying or avoiding entirely a factual hearing.” It has been Trump, who, across his four criminal trials, has pushed for delay. Mr. Smith has sought to push the pace.The role reversal suggests that the government’s calculus has shifted, and that the impetus to rush — Mr. Smith once applied to the Supreme Court for consideration so expedited he allowed it was “extraordinary” — has abated. If Vice President Harris wins the White House, the special counsel will have at least four more years to secure a “guilty” verdict. If Trump wins, the federal cases will likely come to a close after he takes the oath of office. There is also the possibility that the government will use the three additional weeks granted them by Judge Chutkan to “slim down” its indictment to focus solely on those acts that courts — and the Supreme Court — are likely to view as unofficial, and therefore vulnerable to prosecution. Such a renovated indictment could have a path through the appellate gauntlet, even as it would be forced to eschew reference to episodes like Trump’s colloquies with Vice President Pence and Department of Justice officials.Even if Messrs. Garland and Smith do not emerge from this three week hiatus with an altered indictment, there could still be a political payoff to pushing the start of the “mini trial” close to November’s elections. Witnesses will be called and evidence will be presented that could cast him in an unflattering light. What happens at Judge Chutkan’s courtroom could affect what transpires at the ballot box on November 5, Trump’s contention from the beginning.

Are Jack Smith and Merrick Garland Outsmarting Trump — or Playing Into His Hands?

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