Judge hints at setting Trump documents trial before election, promises decision soon

A federal judge on Tuesday heard opposing arguments for when to schedule the politically charged trial of former President Donald Trump on a 38-count indictment accusing him of mishandling classified materials at his Palm Beach estate.

Trump’s lawyers urged U.S. District Judge Aileen Cannon to postpone what promises to be a complex and controversial criminal trial involving scores of sensitive government secrets until after the 2024 presidential election. U.S. Justice Department prosecutors argued to start as early as December, saying Trump’s political aspirations aren’t legal grounds for indefinite delay.

Cannon did not make a decision during the two-hour hearing in the Fort Pierce federal courthouse, but said she would make a ruling promptly and seemed to signal she was prepared to move forward with the trial before the election.

“I think some deadlines can be established now,” she told Trump’s lawyers.

Cannon, a Trump appointee who joined the federal bench in 2020, had asked both sides to be prepared to address the trial schedule issue as well as the crucial sharing of evidence on national security under the Classified Information Procedures Act at the Tuesday afternoon hearing. A special counsel’s team of prosecutors pushed for the trial this year, admitting at the hearing that it is an “aggressive” schedule. Meanwhile, defense attorneys sought an indefinite delay because of the huge volume of evidence and a looming election that has Trump the apparent early front-runner for the Republican nomination pitted against Democratic incumbent Joe Biden.

“Our view is, he should be treated like anybody else,” federal prosecutor David Harbach told Cannon, noting the fact that Trump is running for president again shouldn’t preclude him from standing trial. “In short, Mr. Trump is not the president, he’s a private citizen. ... He is no different from any other busy person who has been indicted.”

Trump’s defense lawyers countered that their client, as a former president running again for the White House, is in a class of his own.

“I very much disagree with the government that we should treat President Trump like any other defendant,” New York attorney Todd Blanche told Cannon, without saying when the trial should be held. “The person he is running against [Biden], his administration is prosecuting him. In my view, it’s intellectually dishonest to say this case is like anything else.”

Trump’s South Florida lawyer, Chris Kise, carried the argument even further, saying that the extreme publicity surrounding the former president’s documents case brought by the Biden administration would prevent him from getting a fair trial before a jury of his peers.

Both Kise and Blanche also mentioned that Trump recently received a target letter from the special counsel indicating that he was a subject of investigation in the Washington, D.C.., grand jury’s review of the Jan. 6, 2021 insurrection at the Capitol building, as the lawyers argued that the former president was under siege by prosecutors.

Cannon, the judge, tried to keep both lawyers on track about preparing for trial, including reviewing the government’s massive amount of evidence and being ready to file any motions to dismiss the case or certain evidence. At one point in the hearing, Cannon asked Kise whether he was suggesting that the trial should be postponed until after the November 2024 election.

“I think that’s the best course of action for this defendant,” Kise told Cannon.

Some legal experts said that it’s understandable why the defense lawyers may need more time to prepare for such a complex trial, but questioned their political motives on an indefinite postponement — possibly beyond the November 2024 election so that, if Trump defeats Biden, Trump can close the case or pardon himself.

“I think there are better arguments to make to get a substantial delay, but by injecting political arguments into the mix, they are making a mistake and will cause the judge to react negatively,” said longtime Miami defense attorney Mark Schnapp, who served as a federal prosecutor in South Florida.

Cannon will be under intense scrutiny by partisan critics and legal observers because she ruled favorably for the former president on appointing a special master to review the FBI’s seizure of classified documents from Trump’s home at Mar-a-Lago in Palm Beach last year. Her decision, which would have delayed the Justice Department’s investigation, was overturned by a GOP-appointed panel of appellate judges in a scathing ruling.

There’s also another curiosity about the historic case: Trump and his co-defendant Walt Nauta were arraigned in Miami federal court in June and July, respectively, but their case was assigned to the West Palm Beach division of the Southern District of Florida, which includes the decade-old Fort Pierce federal courthouse. Fort Pierce is a mostly working-class coastal community of about 48,000 people and serves as the county seat of St. Lucie County, drawing upon a pool of potential jurors in a region that supported Trump in the last two presidential elections.

Last week, in a new court motion, the defense teams for Trump and Nauta urged Cannon to postpone the government’s proposed trial date of Dec. 11 indefinitely, arguing that the Justice Department’s push to prosecute Trump as soon as possible is “untenable” because of the breadth and complexity of the classified documents case. Nauta, a Trump aide in the White House who still works for him as a valet, was in attendance at Tuesday’s court hearing. Trump was not.

A delay in trial is the big question

Legal experts who have been following the indictment charging Trump with willfully retaining classified documents at Mar-a-Lago and conspiring to obstruct justice with Nauta predicted after it was returned on June 8 by a Miami federal grand jury that the defense would seek to delay the former president’s trial against the wishes of the Justice Department’s special counsel Jack Smith. His team, in a court reply filed last Thursday, said “there is no basis in law or fact for proceeding in such an indeterminate and open-ended fashion, and the Defendants provide none.”

Experts noted that the key factors on the trial date include not only the unprecedented criminal case against a former president heading into another possible election, but also the fact that Trump is scheduled for another criminal trial next March in New York involving his alleged payment of hush-money payments to a porn actress during the 2016 campaign.

Although it remains unclear how Cannon will decide this critical dispute over the trial date, Cannon has already chosen a government security officer to act as a custodian of the hundreds of classified records that were obtained from Trump’s Mar-a-Lago residence and club through a government request, subpoena and search warrant last year. The name of that security officer remains a secret under court seal.

Another crucial issue is where those materials with “top secret,” “secret” and “confidential” markings — about 340 classified documents along with about 1,200 related FBI witness statements — will be stored at the Fort Pierce courthouse or elsewhere in a “sensitive compartmented information facility” for both sides to review them before and during trial. (During his presidency, Trump had a room at his Mar-a-Lago residence designated as a so-called SCIF for him and his top aides to review classified records.)

So far, according to the latest filing by Trump’s lawyers, the special counsel’s team has turned over a mountain of evidence: about 1.1 million pages of unclassified records, including emails with attachments, documents from more than 90 different sources, and terrabytes of compressed raw CCV footage spanning nine months.