Special Counsel Jack Smith’s request for a three-week delay in the January 6 trial — granted on Friday by Judge Tanya Chutkan — could signal a change in strategy at the highest levels of the Department of Justice, and even at the White House. 

Mr. Smith’s petition for extra time to provide Judge Chutkan with a proposed briefing schedule for the “mini trial” on immunity in his prosecution of President Trump over January 6 offers an unprecedented porthole into a decision-making process that appears to have sprawled and snarled. A hearing in the case is now scheduled for September 5.  

The special counsel writes that he is still digesting the “new precedent” handed down in Trump v. United States, where a 6-to-3 Supreme Court ruled that official presidential acts are immune, and unofficial ones lack immunity. Some acts are “absolutely” immune if they are in the heartland of presidential power and prerogative. 

Trump “does not object to the Government’s request for an extension,” which comports with his eagerness for delay, a posture that the 45th president has pursued in all four of the criminal cases handed up against him. Now, though, it is Mr. Smith who pleads for more time for “consultation with other Justice Department components.” He indicates that those consultations “are well underway” but that more time is needed. 

This filing is unusual because across Mr. Smith’s January 6 and Mar-a-Lago cases, it has been the special counsel who has claimed a “compelling” public interest in accelerated proceedings at every judicial tier — district, appellate, and at the Supreme Court. He even petitioned the Nine for “certiorari before judgment” in the immunity case, allowing that it was an “extraordinary request” for an “extraordinary case.” That was denied.

The prosecutor has admitted that his side “has not finalized its position on the most appropriate schedule for the parties to brief issues related” to Trump. Mr. Smith cites federal regulations, which mandate that a “Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance.”

Those same regulations, though, also explain that the “Special Counsel shall not be subject to the day-to-day supervision of any official of the Department,” though the “Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step.” Attorney General Garland cited that provision when he appointed Mr. Smith two days after Trump declared his intention to attempt to regain the presidency. 

Mr. Smith’s invocation of a braintrust that comprises “other Justice Department components” is somewhat at odds with how he has previously described his office in the Mar-a-Lago case before Judge Aileen Cannon dismissed the charges and ruled that the special counsel was unconstitutionally appointed. The occasion was Trump’s argument that Mr. Smith’s “prosecution team” encompassed a range of federal agencies, who were therefore obligated to provide the 45th president with discovery materials.

The special counsel contended that his prosecution team was limited to “the prosecutors … and law enforcement officers of the [FBI] … who are working on this case, including members of the FBI’s Washington Field Office and Miami Field Division.” He made no mention of other “components.” If, say, Mr. Garland was involved in a meaningful way in the prosecution of that case, the Brady rule would have required him to turn over documents that could have attested, even possibly, to Trump’s innocence.

One possible explanation for this discrepancy is that Mr. Garland is now playing a more active role in Mr. Smith’s prosecutions, if he was not hands-on all along. Last month the attorney general took to television to accuse Judge Cannon of making a “basic mistake about the law” that he claims he, an experienced former federal prosecutor and judge, never would have made. When Mr. Garland appointed Mr. Smith, he emphasized a “commitment to both independence and accountability in particularly sensitive matters.”

A clue to Mr. Smith’s sudden reversal to hitting the brakes from pushing the pedal could lie in the broader political environment. Ms. Harris’s brightening electoral fortunes could mean that Mr. Smith could have another four years to prosecute his two cases. Once the possibility of a trial before the election evaporated, Mr. Garland — and, possibly, President Biden and Ms. Harris — could have reckoned that it was better to proceed with caution. 

Mr. Smith’s request for a delay could signal that he and Mr. Garland are considering revising their indictment to exclude acts that the Supreme Court has already ruled are immune, like Trump’s conversations with Vice President Pence and his interactions with the Department of Justice. Spending extra time now on a “slimmed down” superseding indictment could eventually smooth the path to a trial and a possible conviction. 

One legal scholar, Alan Dershowitz, tells the Sun that is the path Mr. Smith should have pursued from the beginning of the prosecution. By excising acts that are likely to be ruled inadmissible anyway, the special counsel — and his boss — could craft a renovated indictment whose more modest scope makes it more likely to survive appellate scrutiny.