UPDATE (Aug. 9, 2024, 1:18 p.m. ET): On Friday, Judge Tanya Chutkan granted special counsel Jack Smith’s request for a time extension to file a joint status report in Donald Trump’s federal election interference case. The report is now due Aug. 30 and a status conference is set for Sept. 5, Chutkan said.
A hallmark of Donald Trump’s litigation strategy has been delay. Now special counsel Jack Smith wants more time in the federal election interference case, though not for the purpose of dragging it out.
In a joint filing on Thursday from Smith and Trump’s lawyers, the special counsel told U.S. District Judge Tanya Chutkan that prosecutors are still assessing the Supreme Court’s presidential immunity ruling in Trump v. United States, including by consulting with other components of the Justice Department. “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,” according to the filing, called a “joint status report.” Smith asked Chutkan for “additional time to provide the Court with an informed proposal regarding the schedule for pretrial proceedings moving forward.”
Chutkan had asked the parties for the proposal to determine how to proceed after the case returned to her following the Supreme Court’s July 1 immunity ruling. She had also set a status conference for Aug. 16. In Thursday’s filing, Smith asked Chutkan for an extension to submit another joint report by Aug. 30, and to hold the previously scheduled Aug. 16 conference at some point after that. Unsurprisingly, the filing noted that Trump “does not object to the Government’s request for an extension.”
Pushing the proposal back a few weeks won’t make the difference in whether a trial happens before the election.
So, what’s going on here? It’s not fully clear from the filing, which (unsurprisingly) didn’t detail the DOJ’s deliberations or the extent to which there is disagreement within the department over how to move forward. To be sure, the Supreme Court’s new test for determining what may be immune from prosecution is cryptic enough that it could prompt different interpretations and prosecutorial strategies. The forthcoming filing on the government’s position may provide more insight into the matter.
At any rate, pushing the proposal back a few weeks won’t make the difference in whether a trial happens before the election. The timing and substance of the Supreme Court ruling has already made that impracticable. The real question now isn’t whether a trial happens before the presidential election but, in the near term, whether Trump wins that election, in which case he can crush the prosecution himself. If he loses, then the question is what will be left of the case after the high court ruling that at least narrows the prosecution. That’s not an excuse for the government being unprepared with its position about how to proceed, but it’s a reality hovering over the case no matter what Smith’s eventual position is. The bottom line for now is that, since there won’t be a pre-election trial, it’s difficult to see this development as a meaningful delay in the grand scheme of things. That delay has already occurred. The next move is up to Chutkan to decide whether to accept the request. If she does, then there won’t be significant movement in the case before September. As it happens, that’s when Judge Juan Merchan is expected to rule on the immunity decision’s effect on Trump’s guilty verdicts in New York and to sentence him that month if he finds that the immunity ruling doesn’t stand in the way. So the next big filing in Trump’s cases could be Smith’s brief due later this month to the 11th U.S. Circuit Court of Appeals, challenging the dismissal of Trump’s federal classified documents case, whose fate, like the federal election interference case, is also partly tied to the presidential election outcome. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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