Special Counsel Jack Smith’s request to the 11th United States Appeals Circuit for a delay in the Mar-a-Lago case against President Trump is another signal that the federal cases against the 45th president are living on borrowed time. It also could block the path to a Supreme Court ruling on the constitutionality of special counsels.

Mr. Smith asked the circuit for a delay until December 2 “to afford the Government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy.” He has docketed the same request to Judge Tanya Chutkan in the election interference case.

The retreat is a reversal for the special counsel, who has been pressing the circuit riders to overturn Judge Aileen Cannon’s ruling that his appointment by Attorney General Garland was unlawful because it lacked statutory basis. She also dismissed all the charges against Trump and ruled that the funding of Mr. Smith was unlawful. It was a stunning victory for the 45th president.

Mr. Smith is petitioning to halt that appeal, which could have found a favorable audience before a tribunal that overruled Judge Cannon before, when she imposed a special master on the government to chaperone its collection of evidence. Now, Mr. Smith acknowledges a changed reality because “one of the defendants in this case, Donald J. Trump, is expected to be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025.”

Once Trump takes the oath of office, Department of Justice policy ordains that the “indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” Trump would also possess the power to hire an attorney general — he’s nominated Congressman Matt Gaetz — to fire Mr. Smith and dismiss the charges.

It appears as if Mr. Garland has decided that he’d rather wind up Mr. Smith’s cases himself — the special counsel could resign and the charges be dismissed — than leave them to the tender mercies of a second Trump term. The request for delay in this case and in the election interference one could be laying the groundwork for how such a withdrawal would be executed. 

If Mr. Smith drops his appeal of Judge Cannon’s verdict, the implications could stretch beyond Trump. The Florida jurist’s decision that Mr. Garland could not appoint Mr. Smith without confirmation by the Senate touched on the Constitution’s Appointments Clause — and Supreme Court precedent, in the case of United States v. Nixon, which appears to suggest that attorneys general can appoint subordinate prosecutors. 

Judge Cannon viewed that holding as dictum, or nonbinding. The opposite conclusion has been reached by the riders of the District of Columbia Circuit of the United States Court of Appeals, whose precedent holds that the attorney general is possessed of the ability to hire special prosecutors and the like. That position binds trial judges at the District of Columbia, such as Judge Chutkan in the January 6 case. 

If the 11th Circuit concurred with its sister circuit rather than Judge Cannon, the conditions would have been ripe for Supreme Court consideration. The Nine, whose power of review is discretionary, are most often tempted to hear a case when there is a divergence between two circuits. Mr. Smith’s withdrawal means that the 11th Circuit will no longer have the opportunity to render a judgment. Judge Cannon’s ruling stands, for now. 

There appear to be at least two justices who could rue the missed opportunity to review. Justice Brett Kavanaugh called the precedent, Morrison v. Olson, which delivered constitutional imprimatur to independent counsels, a “terrible decision” and “one of the Court’s biggest mistakes.” Justice Clarence Thomas appears to share Judge Cannon’s position. He has written that Mr. Smith’s “prosecution may violate our constitutional structure.”