President Trump’s request to delay, for a month, the submission of his brief in the Mar-a-Lago case suggests that his attorneys have not quite finished charting a path forward on appeal. Special Counsel Jack Smith has acquiesced to the delay, suggesting that he is in no rush, either.  

The 45th president’s plea for an extension was made to the 11th United States Appeals Circuit. The circuit riders will hear Mr. Smith’s appeal of Judge Aileen Cannon’s ruling dismissing the 40 criminal charges handed up against the 45th president for stashing classified documents at his manse.

Judge Cannon’s decision is Trump’s signature victory in the four criminal cases arrayed against him. The Florida jurist, who Trump appointed to the bench in 2020, determined that Attorney General Garland’s hiring of Mr. Smith from the Hague was legally unsound. She found no basis — constitutional or statutory — for the prosecutorial power wielded by the special counsel. 

The judge discerned that dismissal of charges was the only way to cure a prosecution she determined marred by a lack of lawful ballast. The Supreme Court, in United States v. Nixon, had appeared to rule that the attorney general possesses the power to appoint subordinate prosecutors. Judge Cannon, though, ruled that the Nine’s determination was non-binding, or dictum. That finding is likely to be challenged on appeal.

The 11th Circuit could well overrule Judge Cannon, reinstate the charges, and return the case to her courtroom for further proceedings. Some amicus curiae, or non-parties, are pushing for even stiffer medicine. Two briefs docketed at the 11th Circuit have argued that the review tribunal ought to exercise its supervisory authority to remove Judge Cannon from the case and reassign it to another judge in the Southern District of Florida.

Mr. Smith has not gone so far, and instead will petition only for a reversal on the issue of his appointment. The 11th Circuit has overruled Judge Cannon before, with respect to her naming of a special master to oversee the government’s handling of evidence collected at Mar-a-Lago. The circuit riders found that the order “would violate bedrock separation-of-powers limitations” and amounted to a “radical reordering of our case law.” 

Trump’s request for a delay could suggest that his lawyers reckon that they could have an uphill climb convincing the 11th Circuit to uphold Judge Cannon’s decision. The special counsel will likely argue that it is a departure from precedent and crosswise with the high court’s ruling in Nixon. General Garland took to television to venture that Judge Cannon made a “basic mistake about the law” when she disqualified his handpicked hire.

Trump cites several reasons for his request for a delay. His lawyers write that he is “presently engaged in motion practice in a separate case brought by the Special Counsel in the District of Columbia,” which centers on election interference. The 45th president is also “litigating issues of first impression in the United States Court of Appeals for the Second Circuit,” whose circuit riders could soon hear appeals from Trump’s hush money convictions.

Mr. Smith’s decision not to challenge Trump’s request is further evidence that the special counsel, who once was in an all-fired rush to try to convict the former president, has shifted his scheduling strategy. That pivot is likely attributable to the impossibility of holding a trial before the election, meaning that the only path to opening statements in this case and the January 6 one runs through a victory in November for Vice President Harris. 

The rules governing the 11th Circuit mandate that a “party’s first request for an extension of time to file its brief or appendix or to correct a deficiency in the brief or appendix must set forth good cause.” Trump claims that the litigation demands of his other criminal cases clear that bar. Mr. Smith, while not opposing the motion, writes “without expressing a view on whether appellees have established good cause.” That ambiguity could double as an invitation to the riders to turn down Trump’s request.