U.S. District Judge Tanya Chutkan on Friday approved a request from special counsel Jack Smith to allow for more time to propose the next steps in the government’s election interference case against former President Donald Trump.
The decision came a day after Smith and fellow prosecutors asked the judge to delay the deadline to offer a new timetable in the case until Aug. 30.
Chutkan had given prosecutors and Trump’s legal team until Friday to submit a joint status report including a timeline for pretrial proceedings ahead of a scheduled Aug. 16 status conference.
Conservative legal expert Jonathan Turley broke down what this all means in his blog:
For over a year, Special Counsel Jack Smith has made one element the overriding priority in his prosecution of former president Donald Trump: speed. Smith repeatedly moved to curtail Trump’s appellate rights and demand expedited appeals to try to secure a conviction before the election. In that effort, he found an equally motivated judge in U.S. District Judge Tanya S. Chutkan, who virtually turned her court into a rocket docket to try Trump. Now, in a neck-breaking change of direction, Smith is trying to slow down Chutkan who appears again ready to pull out the stops in this case.
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After the mandate in the case was returned to her, Judge Chutkan immediately resumed her high-speed scheduling to look at the pre-trial issues after the Court reversed her earlier rulings on the basis of presidential immunity.
The past problem with a court making speed the priority is that it does not allow much time to create a record. The remand will now require Judge Chutkan to do so on the question of what charges and evidence may be barred under the ruling in Trump v. United States.
As it has in the past, the c=Court adopted a three-tiered approach to presidential powers based on the source of a presidential action. Chief Justice John Roberts cited Youngstown Sheet and Tube Co. v. Sawyer, in which the court ruled against President Harry Truman’s takeover of steel mills.
In his famous concurrence to Youngstown, Justice Robert Jackson broke down the balance of executive and legislative authority between three types of actions. In the first, a president acts with express or implied authority from Congress. In the second, he acts where Congress is silent (“the zone of twilight” area). In the third, the president acts in defiance of Congress.
In this decision, the Court adopted a similar sliding scale. It held that presidents enjoy absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial or private actions.
Only hours after receiving the mandate, Judge Chutkin scheduled an Aug. 16 conference to lay out the schedule and issues going forward. The former version of Jack Smith would have been delighted. He did not even see the need for the right for an en banc appeal in previously pushing for a pre-election trial.
Now, however, Smith is telling Judge Chutkin to slow down already.
Smith told the court that “The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States. 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.”
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He has asked for a three-week delay to further consider what he wants to do. It is not clear if the press and pundits will now charge Smith with “slow walking” the case.
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