The request  by Special Counsel Jack Smith for more time to propose a schedule for a so-called “mini trial” to determine which evidence can be presented in his January 6 case is a concession that he has not yet digested the Supreme Court’s decision on presidential immunity. Was the choice, though, his own, or Attorney General Garland’s?

The petition for an extra three weeks is a stunning about-face for Mr. Smith, who at every juncture has sought to push the pace of his prosecutions of the 45th president. Trump agreed to this request for an extension, suggesting a commitment to comity  — or that his team also could use additional time to polish their briefs. 

One possibility is that Mr. Smith — in discussion with Mr. Garland — is considering whether to amend his indictment in the wake of the high court’s immunity ruling. Prosecutors retain the ability to edit or amend their indictment — the new one is called “superseding” — without convening a new grand jury. Justice Amy Coney Barrett, in oral arguments, suggested that the special counsel pare down his charges to evade the immunity hurdle.

Mr. Smith charged Trump last year with engaging in a “criminal scheme” to overturn the results of the 2020 election. The prosecution, which concerns Trump’s actions as president, has been cast into doubt after the Supreme Court ruled in July that presidents are presumptively immune from prosecution for “official acts.” Some acts are “absolutely immune.” Unofficial acts are not immune. 

Mr. Smith’s surprise request for a delay hit Judge Tanya Chutkan’s docket the night before a Friday deadline she’d set for both sides to propose “pretrial proceedings moving forward.” She had also instructed that “parties may explain any disagreements” in supplemental filings. The high court tasked her with conducting evidentiary findings to determine which of the acts in Mr. Smith’s indictments are official. 

Now, Mr. Smith writes that “the Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States.” The special counsel explains that although “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.” He proposes an August 30 date for the exchange of schedules. If Judge Chutkan agrees, a hearing now set for August 16 would have to be moved.

Mr. Smith’s request is all the more striking because Judge Chutkan has acted with alacrity since the Nine returned the case to her courtroom after overruling her decision that former presidents are not entitled to immunity. She immediately denied Trump’s motion to dismiss the case as an example of what his attorneys called a “selective and vindictive prosecution.” Now, it is the special counsel who pleads for time.

Mr. Smith, In asking for an extension, writes that he is “pursuing consultation with other Department of Justice components.” He contends that the additional time will result in an “informed proposal regarding the schedule for pretrial proceedings moving forward.” The special counsel indicates that he is available for an in-person session beginning on the first of September. 

The invocation of additional DOJ “components” is language that has not appeared before in Mr. Smith’s briefs, and could suggest that word came from on high — possibly Mr. Garland’s office. The attorney general took to television earlier this month to castigate Judge Aileen Cannon, the Florida jurist presiding over the Mar-a-Lago classified documents case, for ruling that his appointment of Mr. Smiths was unconstitutional. Mr. Garland contends that was a “basic mistake about the law” that he, a former appellate judge, would never have made.    

Trump’s schedule is at present full with legal obligations.The former president relates that he is unavailable on September 6 and the week of September 16. The first date is when oral arguments are to be held in Trump’s appeal of the first verdict in the E. Jean Carroll civil case. September 16 is when Judge Juan Merchan will rule if immunity requires overturning Trump’s hush money convictions. September 18 is dedicated to sentencing in that case.