Posted originally on the CTH on June 24, 2023 | Sundance 

If you accept a very specific outlook into the mindset of the Lawfare operatives (Weissmann, Eisen, Berke, McCord et al) as strategic thinkers -the brain trust- behind the Special Counsel Jack Smith prosecution, then you might see the dynamic in this story.

Previously, amid his grand prose and proclamations outlining his spectacular and magnificent legal constructs, wunderkind Jack Smith was so confident in his case he strategically announced he would demand a “speedy trial” in order to preserve the great American democracy.

If you see Lawfare as a narrative construct, the pontification made sense.

However, less than two weeks later, suddenly the ever-confident Jack Smith is reversing his position and asking Florida Judge Cannon to delay the trial.

(Via NBC) – Special counsel Jack Smith has asked the judge overseeing former President Donald Trump’s classified documents case to delay the start of his criminal trial until December.

The request came in a series of new motions filed late Friday by the special counsel.

U.S. District Judge Aileen Cannon had set a tentative date of Aug. 14 for the start of the trial. (more)

Remember, Lawfare is first and foremost a narrative construct intended for public media consumption.  Lawfare originates from the perspective of an established legal goal, and then all of the activity is structured around supporting that goal.  [A version of find me the man I’ll find you the crime.]

Lawfare is the opposite of following evidence.  In fact, in its purest and most visible form, political Lawfare actually requires the ignoring of evidence.

♦ Why the delay?

I think the prosecutors got tripped up by their first motion.

Knowing how Weissmann, Berke, Eisen and McCord think, which is likely similar to how the lesser strategic Jack Smith thinks, the prosecution brain trust likely anticipated a counter motion to their first submission to the court restricting Trump’s access to the evidence being used against him.

The originating defense counter motion, if it had been filed based on substantive grounding around presidential power and ownership of the documents now cited as evidence, legally there would have been a very large constitutional argument sucking up months of court and litigation time.

I think the prosecution team was caught off guard when Trump’s lawyers just simply agreed to the terms and conditions.  That has thrown the prosecution strategy into a timeline crunch they didn’t expect.

The DOJ crew were likely prepared to litigate a VERY big hurdle, and whether by accident or defense strategy when Trump’s lawyers acquiesced, they mooted the anticipated prosecutorial hurdle Smith was expecting.

While I don’t personally agree with that Trump defense team approach (if intended), the outcome of their agreement puts the more substantive pre-trial motions on a fast track to the judge.

Regardless of Trump’s defense team intent or strategy, apparently Jack Smith was caught off guard.

Jack Smith wouldn’t ask for a delay, essentially like putting egg on his own face given his prior statements, if he didn’t need the delay.  Smith needs the delay.