Ex-prosecutor: 'Devilry may be afoot' at DOJ in Trump's election fraud case

Special counsel Jack Smith took an "uncharacteristic time-out" in asking for — and receiving — a three-week delay in former President Donald Trump's election interference case in Washington, D.C. That delay led one former federal prosecutor to believe some "devilry may be afoot within the U.S. Justice Department."

Judge Tanya Chutkan's court had scheduled a status conference for Aug. 16 and instructed attorneys to file a joint status report by Friday proposing a schedule for pretrial proceedings.

However, prosecutors said in court documents they are still reviewing the immunity ruling handed down by the Supreme Court in Trump v. United States. The special counsel must comply with Justice Department rules and regulations, including consulting with certain offices within the agency for guidance.

"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," the special counsel's office said.

Prosecutors asked — and Trump's team did not object to — an extension to submit another joint status report by Friday, Aug. 30, and continue the scheduled status conference until a convenient day thereafter.

Former federal prosecutor Shan Wu wrote in an opinion piece on The Daily Beast that special counsel Smith has "repeatedly emphasized the public’s need to have answers about Trump’s election interference efforts."

While the Supreme Court's immunity ruling likely hindered some of Smith's case, it mainly caused the case to return to Chutkan to decide what evidence is allowed at trial, Wu said. The trial and appeals courts moved swiftly to return the case back to them, Wu noted, so it's puzzling why Smith is the one who needs more time.

"Having worked in the leadership offices of DOJ, I completely know what Smith means when he references engaging in 'consultation with other Department of Justice components,'" said Wu.

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Thos components, Smith refers to, likely include the deputy attorney general, the criminal division, the office of legal counsel, the office of the solicitor general and the attorney general.

"The DOJ is notorious—as are many large agencies—for having constant meetings to determine positions and policies but there seems to have been plenty of time to sort this out already," he said.

Wu tried to read "the tea leaves" as to what might be behind the request.

There could be, he said, a disagreement between Smith and Attorney General Merrick Garland on how aggressively to progress the case.

"One of the possible actions that could occur next would be a so-called 'mini-trial' with live witnesses to determine which of Trump’s actions were truly official acts subject to immunization. Such a process—if held before the election—would very publicly remind the voters of what Trump had done and possibly reveal new and damaging information," noted Wu.

The notion could have been met with hesitation by Garland, who wants to avoid having the Justice Department accused of weaponization.

Alternatively, Smith may be trying to "re-tool" his case to make it "less vulnerable" — or even indict more co-conspirators. Another possibility: the Justice Department may be looking further into how the Supreme Court ruling affects the definition of "obstruction of justice."